THE 


LIFE 


HON.  NATHANIEL  CHIPMAN,  LL.D. 


FORMERLY 

MEMBER  OF  THE  UNITED  STATES  SENATE,  AND  CHIEF 
JUSTICE  OF  THE  STATE  OF  VERMONT. 


SELECTIONS 

F  ROM      HIS      MISCELL A  X  E  O  I    S      TAPERS 


BY    HIS    BROTHER, 

DANIEL    CHIPMAN 


BOSTON: 
CHARLES  C.  LITTLE  AND  JAMES  BROWN. 

1  S  1 6  . 


Entered  according  to  Act  of  Congress,  in  the  year  1845, 

By  Daniel  Chip.mas, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


boston: 
pkintcd    hy    prekmah  and   bollks, 

\v  \-mim;  row    B  rii  BIT. 


V 


PREFACE. 


£ 


si 

>       Although  it  might  be  supposed  that  the  death  of 

^  my  brother,  at  his  advanced  age,  would  not  surprise 
c^  or  deeply  affect  any  one,  yet,  as  we  had  been  the 
only  survivors  of  a  numerous  family,  and  as  he  had 
now  left  me  the  only  survivor,  the  intelligence  of 
his  death  produced  a  shock,  which  I  had  not  antici- 
pated. I  felt  a  depressing,  lonely  feeling,  which  I 
will  not  undertake  to  describe  ;  and  I  at  once  re- 
sorted to  the  numerous  letters  which  had  passed 
between  us,  and  spent  the  day  in  reading  them. 
From  this  I  found  relief :  It  seemed  like  a  renewal 
of  our  long,  intimate  fraternal  intercourse.  This 
suggested  the  idea  of  writing  his  biography,  before  it 
was  suggested  by  others.  As  I  anticipated,  I  have 
derived  great  satisfaction  from  a  review  of  his  life 


•n? 


IV  PREFACE. 

and  character  ;  alloyed,  however,  by  a  fear,  that,  by 
the  infirmities  of  age,  I  should  not  be  able  to  do 
justice  to  the  subject,  if  permitted  to  bring  if  to  a 
conclusion  in  any  form.  But  I  have  great  reason  to 
be  thankful  that  a  kind  Providence  has  enabled  me 
to  bring  the  work  to  a  close,  though  not  in  a  manner 
satisfactory  to  myself.  A  considerable  portion  of 
the  time  since  the  decease  of  my  brother,  I  have 
been  wholly  unable  to  write,  and  at  all  times  writing 
with  difficulty.  I  have  permitted  a  great  portion  of 
the  work  to  be  copied  from  the  first  draught.  But 
if  the  work,  with  all  its  defects,  shall  prove  useful  ; 
if  I  have  portrayed  the  character  of  Nathaniel 
Chipman  with  exact  truth;  if  I  have  succeeded  in 
accounting  for  the  acuteness,  strength  and  compre- 
hension of  his  mind,  and  for  that  fund  of  general 
knowledge  which  he  had  acquired,  by  truly  setting 
forth  his  early  training,  his  early  voluntary  attention, 
his  conscientious  regard  for  truth,  and  his  systematic 
diligence,  —  I  have  accomplished  all  I  wished.  I 
have  sel  forth  an  example,  to  be  followed  by  parents 
in  training  their  children,  1>\  young  men  in  the  course 
of  their  education,  and  1>\  all  in  public  life.  To 
write  a  panegyric  would,  in  this  case,  savor  of  van- 


PREFACE.  V 

ity,  and  is  in  no  case  very  useful,  without  setting 
forth  the  early  training  and  the  early  acquired  habits 
which  contributed  to  form  the  character  of  the  per- 
son eulogized,  as  an  example  to  be  followed  by  the 
rising  generation.  Such  is,  undoubtedly,  the  legiti- 
mate purpose  of  biography.  To  eulogize  a  great 
and  a  good  man  may  indeed  be  useful,  by  exciting 
an  ambition  to  follow  his  example,  but  it  does  not 
instruct  the  young  by  what  means  they  may  be  ena- 
bled to  do  so.  Biographers  are  generally  compelled, 
from  a  want  of  a  knowledge  of  facts,  to  content 
themselves  with  portraying  the  character  as  it  ap- 
peared on  the  theatre  of  life,  without  setting  forth 
the  causes  which  operated  in  forming  it.  Fortu- 
nately, in  this  case,  I  have  been  able  to  obtain  the 
necessary  facts,  or  rather  to  detail  them  from  my 
own  knowledge.  All  this  I  could  do  without  any 
embarrassment.  But  from  my  near  connection  with 
Judge  Chipman,  and  from  the  very  high  estimation 
in  which  I  had  ever  held  him  as  a  judge,  I  felt  a 
delicacy  in  portraying  his  judicial  character,  fearing 
that  I  might  either  go  beyond  or  fall  short  of  exact 
truth.  So  sensibly  did  I  feel  this  embarrassment, 
that  I  concluded  to  engage  some  jurist,  more  compe- 


VI  PREFACE. 

tent  and  more  impartial,  to  write  his  judicial  charac- 
ter. Having  formed  this  conclusion,  for  obvious 
reasons,  my  at  ten!  ion  was  immediately  turned  to  the 
Hon.  Samuel  Prentiss  ;  and  I  took  leave  to  write 
him  on  the  subject.  In  answer,  I  received  the  fol- 
lowing letter  : 

Montpelier,  Dec.  14th,  1843. 
Dear  Sir  :  I  have  reflected  upon  the  subject  of 
your  letter,  and  am  quite  free  to  say  that  in  my 
opinion,  no  one  is  so  competent  to  write  the  judicial 
character  of  your  brother,  as  yourself.  You  have 
advantages  in  the  execution  of  such  an  undertaking 
which  no  other  one  possesses.  You  were  a  cotempo- 
rary  with  him,  practised  at  the  bar  under  his  admin- 
istration, and  know,  of  course,  all  the  various  traits 
of  mind  and  constitutional  temperament,  which, 
combined  with  his  deep  and  extensive  learning,  en- 
titled him  to  rank  among  the  first  judges  of  this,  or 
any  other  country.  From  your  personal  observation 
and  intimate  knowledge  of  him  both  in  public  and 
private,  you  are  enabled  to  state  the  prominent  fea- 
tures of  his  mind  and  character  as  a  judge,  and  to 
illustrate  his  peculiar  excellencies  in  that  capacity. 


PREFACE.  Vll 

with  more  truth,  discrimination  and  accuracy,  than 
it  is  in  the  power  of  any  one  else  at  this  day  to  do. 
I  knew  his  general  reputation  as  a  judge,  and  wit- 
nessed, during  the  short  period  he  was  last  on  the 
bench,  exhibitions  of  the  great  strength,  vigor,  com- 
prehension and  clearness  of  his  mind,  of  his  pro- 
found and  accurate  knowledge  of  legal  principles, 
and  of  his  remarkably  discriminating  and  well-bal- 
anced judgment ;  but  my  practice  in  the  supreme 
court  was  at  that  time  but  just  commencing,  and  my 
opportunities  of  personal  observation  were  too  few 
and  limited  to  enable  me  to  give,  with  just  precision 
and  distinctness,  neither  going  beyond  nor  falling 
short  of  exact  truth,  the  distinguishing  traits  of  his 
judicial  character.  All  this,  as  I  have  said,  you  have 
the  means  of  doing,  and  I  think  you  should  feel  no 
delicacy  in  performing  it,  but  express  your  views 
with  perfect  freedom,  and  without  reserve.  The 
life  of  Lord  Keeper  Guilford,  one  of  the  most  inter- 
esting biographies  extant,  was  written  by  his  brother ; 
the  life  of  Lord  Hardwick,  if  I  recollect  right,  was 
the  production  of  his  son  ;  and  so  was  the  life  of 
Lord  Teignmouth  the  work  of  his  son.  To  these 
might  be  added  many  other  instances  of  the   like 


Vlil  PREFACE. 

kind,  both  in  English  and  American  literature  ;  so, 
you  see,  you  are  not  without  the  support  of  numer- 
ous and  very  illustrious  examples. 

I  am,  with  high  respect, 

Your  obedient,  &,c. 

Samuel  Prentiss. 

Hon.  Daniel  Ciiipmax. 

On  the  receipt  of  the  foregoing  letter,  I  proceeded 
with  the  work,  following  the  friendly  advice  of  Judge 
Prentiss  in  expressing  my  views,  as  the  reader  will 
perceive,  with  perfect  freedom,  and  without  any  re- 
serve ;  and,  I  hope,  without  going  beyond  or  falling 
short  of  exact  truth. 

fiipton,  August  1:3,  1844. 


CONTENTS. 


CHAPTER  I. 

Page. 
Genealogy  of  the  Family  —  The  staid  Habits  of  the  Puritans  con- 
tinued during  his  Childhood  and  Youth  —  Diligent  and  systematic 
Pursuit  of  his  collegiate  Studies  —  Appointed  Lieutenant  in  the 
revolutionary  Army  —  Some  of  his  juvenile  poetic  Productions  — 
Letters  to  some  of  his  Classmates,  written  while  in  the  Army, 
and  when  pursuing  his  legal  Studies  —  Admitted  to  the  Bar  in 
Connecticut  and  commenced  Practice  in  Vermont  —  His  standing 
at  the  Bar.       .......  5 


CHAPTER   II. 

Secret  Negotiations  with  the  British  Authorities  in  Canada  —  Ex- 
tract from  the  "  Life  of  Brant,"  containing  a  Charge  of  Criminal- 
ity against  the  Leading  Men  in  Vermont  —  Abdication  of  those 
Patriots  against  the  Charge.     .....  37 


CHAPTER  III. 

Occasion  and  beneficial  Operation  of  the  Quieting  Act  —  Mr.  Chip- 
man  unsuccessful  in  his  Farming  and  other  Business  —  Resolu- 
tion of  the  Legislature,  by  which  certain  Measures  proposed  for 
the  Relief  of  the  People  calculated  only  to  increase  and  prolong 
their  Sufferings,  were  postponed  and  defeated —  Elected  Assistant 
Judge  of  the  Supreme  Court.  .  .  .  .62 

b 


CONTENTS. 
CHAPTER  IV. 


Correspondence  between  Nathaniel  Chipman  and  Alexander  Hamil- 
ton —  Settlement  of  the  Controversy  with  New  York. 


CHAPTER  \  . 

Convention  called,  by  which  Vermont  acceded  to  the  Union  —  Speech 
of  Nathaniel  Chipman  in  the  Convention  —  Admission  of  Vermont 
to  the  Union.    .......  83 


CHAPTER  VI. 

Elected  Chief  Justice  —  Confirmation  Charter  under  New  York  — 
Why  they  were  not  taken  by  the  Settlers  on  the  West  Side  of  the 
Mountain  — The  Law  in  relation  to  those  Charters  settled  by 
Judge  Chipman  —  Appointed  District  Judge  —  Letters  to  General 
Schuyler  and  Governor  Robinson  —Sketches  of  the  "  Principles 
of  Government  " — Reports  and  Essays  —  Resigned  his  Office  of 
District  Judge  —  Appointed  one  of  a  Committee  to  revise  the 
Statutes  —  Elected  Chief  Justice  —  His  Character  as  a  Politi- 
cian.     ........  96 


CHAPTER  VII. 

Elected  Senator  —  His  Speech  in  the  Senate  on  a  Resolution  con- 
cerning a  breach  of  its  Privileges  —  Letter  expressing  his  Views 
of  the  French  Revolution  —  His  Speech  on  the  Judiciary  Act.  113 


CHAPTER  VIII. 

Represented  the  town  of  Tinmoulh,  in  the  Legislature,  for  se- 
veral years  —  Elected  one  of  the  Council  of  Censors,  who  pro- 
posed Amendments  to  the  Constitution,  and  published  the  "Con- 
stitutionalist" in  support  of  the  Amendments.  .  .        153 


CHAPTER  IX. 

Elected  Chief  Justice  in  October,  1813  —  Displaced  in  1815  —  His 
Judicial  Character.        ......         105 


CONTENTS.  XI 

Page. 

CHAPTER  X. 

Appointed  Professor  of  Law  in  Middlebury  College  —  Delivered  a 
course  of  Lectures  —  His  Work  on  Government  —  Adventures  of 
his  son  Edwin  —  Sickness  and  Death  —  Conclusion.     .  .         20-1 


APPENDIX. 

NO.  I. 

A  Dissertation  on  the  Act  adopting  the  Common  and  Statute  Laws 
of  England.       .......         221 

NO.  II.  —  LECTURE  I. 
On  Law  in  General.  ......         235 

NO.  III.  —  LECTURE  II. 
Of  National  Law,  and  Municipal  Law  in  General.  .  .         249 

NO.  IV.  — LECTURE  III. 
On  the  System  of  Law  and  the  Proper  Method  of  Study.  .         267 

NO.  V.  — LECTURE  IV. 
On  the  Right  of  Property.  .....        283 

NO.  VI. 

Observations  on  Mr.   Calhoun's  Expose  of  his  Nullification    Doc- 
trines, published  in  the  Richmond  Whig.  .  .  .         293 

NO.  VII. 

Letter  from  Governor  Chittenden  to  General  Washington,  upon  the 
Policy  and  course  of  Vermont  in  the  Revolutionary  War.         .         383 


xjj  CONTENTS. 


NO.  VIII. 

Letter  from  Nathaniel  Chiptnan  to  Alexander  Hamilton,  occasioned 
bv  certain  Proceedings  of  the  Democratic  Society  of  the  County 

^L-        j  .         393 

of  Chittenden     . 


LIFE   OP  NATHANIEL   CHIPMAN. 


CHAPTER  I. 


Genealogy  of  the  Family  —  The  staid  Habits  of  the  Puritans  continued 
during  his  Childhood  and  Youth  —  Diligent  and  systematic  Pursuit  of 
his  collegiate  Studies  —  Appointed  Lieutenant  in  the  revolutionary 
Army  —  Some  of  his  juvenile  poetic  Productions  —  Letters  to  some  of 
his  Classmates,  written  while  in  the  Army,  and  when  pursuing  his 
legal  Studies  —  Admitted  to  the  Bar  in  Connecticut  and  commenced 
Practice  in  Vermont  —  His  standing  at  the  Bar. 

The  common  ancestor  of  all  those  bearing  the 
name  of  Chipman,  in  North  America,  was  John 
Chipman,  born  in  Barnstable,  in  England,  in  the 
year  1614.  He  emigrated  to  America  in  the  year 
1630,  at  the  age  of  sixteen,  and  married  a  daughter 
of  John  Howland,  one  of  the  pilgrims,  who  in  1620 
landed  from  the  Mayflower  upon  the  Plymouth  rock. 
He  settled  on  a  farm  in  Barnstable,  on  which  his  de- 
scendants have  ever  since  resided.  He  was  admitted 
a  freeman  by  vote  of  the  town  in  December,  1662. 
His  second  son,  Samuel  Chipman,  was  born  in  Barn- 
stable, August  15th,  1661.  He  married  Sarah  Cobb, 
and  had  ten  children,  one  of  which  was  John  Chip- 
man,  born  in  Barnstable  in  1691,  graduated  at  Har- 


b  J. 11  E    OF    NATHANIEL    CH1PMAN. 

vard  College  in  1711,  ordained  minister  in  Beverly, 
Massachusetts,  in  1715,  and  died  in  1775,  aged  84. 
He  had  fifteen  children  ;  their  descendants  are  very 
numerous  in  Nova  Scotia  and  New  Brunswick, 
among  whom  is  Ward  Chipman,  one  of  the  com- 
missioners under  the  treaty  of  Ghent  for  settling  the 
North-eastern  boundary. 

The  eldest  of  the  ten  children  of  Samuel  Chip- 
man  was  Thomas,  born  in  Barnstable,  November 
17th,  1687.  He  settled  in  Groton,  Connecticut,  and 
had  five  sons,  Thomas,  John,  Amos,  Samuel  and 
Jonathan.  In  the  year  1740,  he  removed  with  his 
five  sons  to  Salisbury,  Connecticut.  In  the  year 
1741,  the  town  of  Salisbury  was  organized,  and  he 
was  the  first  representative.  When  the  county  of 
Litchfield  was  organized,  he  was  appointed  a  judge 
of  the  county  court,  but  died  before  the  first  term. 
His  son  Samuel,  father  of  the  subject  of  this  memoir, 
married  Hannah  Austin,  of  Sufiield,  Connecticut. 
The  family  records  having  been  lost,  the  following  is 
all  that  is  known  of  her  family.  Her  father  was  a 
physician  ;  himself  and  the  father  of  the  late  Apollos 
Austin,  of  Orwell,  Vermont,  were  cousins.  The  late 
Seth  Austin,  of  Tunbridge,  Vermont,  the  late  Aaron 
Austin,  of  New  Hartford,  Connecticut,  the  late  Dan- 
iel Austin,  merchant  in  New  York,  and  the  late  Eli- 
phalet  Austin,  of  the  state  of  Ohio,  were  her  nephews. 
And  I  learned  from  the  late  Benjamin  Austin,  of 
Boston,  that  himself  and  the  Austins  in  Sufiield,  were 
of  the  same  stock.  Samuel  and  Hannah  Chipman 
had  Biz  sons,  Nathaniel,  the  subject  of  this  memoir, 
who  was  born  the  15th  of  November,  1752,  Lemuel, 


LIFE    OF    NATHANIEL    CHIPMAN.  / 

Darius,  Cyrus,  Samuel  and  Daniel.  The  five  eldest 
brothers  died  at  the  following  ages,  to  wit :  Nathan- 
iel, 90 ;  Lemuel,  76 ;  Darius,  76 ;  Cyrus,  77,  and 
Samuel,  76.  Their  father,  Samuel  Chipman,  and  his 
two  brothers,  Thomas  and  Jonathan,  all  died  in  the 
ninety-first  year  of  their  age. 

To  delineate  the  character  of  Nathaniel  Chipman, 
and  clearly  to  account  for  the  early  discipline,  acute- 
ness,  strength  and  comprehension  of  his  mind,  for 
which  in  after  life  he  was  so  distinguished,  it  seems 
necessary  to  advert  to  the  times  in  which  he  spent 
his  childhood  and  youth. 

The  staid  habits  of  the  puritans  were  continued 
with  little  adulteration  to  the  commencement  of  the 
revolutionary  war.  Everything  with  them  was  or- 
derly and  systematic.  In  comparison  with  the  reli- 
gious character  of  their  descendants,  their  religion 
was  more  intellectual.  Great  stress  was  laid  on  or- 
thodoxy —  on  a  clear  understanding  and  steadfast 
faith  in  the  great  doctrines  of  the  Gospel,  and  less  on 
the  vividness  of  their  religious  affections.  As  their 
religious  affections  were  less  vivid,  they  were  more 
uniform,  more  habitual,  and  thus  became  actuating 
motives,  and  settled  religious  principles  by  which  they 
were  governed  in  all  the  concerns  of  life.  Public 
worship  was  punctually  attended  on  the  Sabbath,  but 
with  them  this  was  scarcely  more  of  a  religious  exer- 
cise than  the  government  of  their  families,  the  educa- 
tion of  their  children,  industry  in  their  several  call- 
ings, honesty  in  their  dealings,  submission  to  the  civil 
and  ecclesiastical  authorities,  and  the  performance  of 
all  their  moral  duties.     True,  other  sects  consider  all 


8  LIFE    OF   NATHANIEL    (Fill'. MAN. 

these  as  enjoined  by  the  scriptures,  but  the  puritans 
had  in  their  exercise  a  more  constant  reference  to  the 
scriptures  for  direction.  Most  treatises  on  religious 
subjects  were  argumentative,  requiring  an  exercise  of 
the  intellectual  faculties,  and  were  in  the  hands  of 
the  mass  of  the  people.  Hence  a  habit  of  voluntary 
attention,  so  indispensable  in  the  education  of  youth, 
was  early  acquired,  with  a  taste  for  solid  and  useful 
reading  on  other  subjects.  It  has  been  said,  that 
"  the  effects  upon  the  intellect  of  the  well-directed 
pursuit  of  religious  knowledge  are  not  inferior  to 
those  of  literary  and  scientific  pursuits,  in  cultivating 
those  mental  habits  and  powers,  which  are  of  the 
greatest  importance  in  the  conduct  of  life,  and  that 
the  laborious  class  of  the  Scotch,  afford  a  striking 
illustration  of  this  truth.  Their  acuteness  and  pene- 
tration of  thought,  solidity  of  judgment,  and  habits  of 
reflection  for  which  they  have  been  justly  so  much 
noted,  have  been  brought  into  exercise  by  their  reli- 
gious culture."  The  puritans  offered  as  striking  an 
illustration  of  this  truth. 

The  family  government  of  the  puritans  was  also 
peculiarly  adapted  to  the  cultivation  of  the  intellect- 
ual faculties,  as  well  as  to  laying  a  foundation  for 
moral  and  religious  principles.  The  child  was  gov- 
erned as  well  by  fear  as  by  affection.  If  a  child  be 
allured  to  the  acquisition  of  knowledge,  it  will  have  a 
tendency  to  form  an  amiable  character.  IJut  unless 
he  be  governed  in  part  by  fear  of  his  parent,  and  act 
in  obedience  to  his  authority,  there  will  seldom  be 
that  hardy  vigor  of  intellect,  which  is  so  useful  in 
every  department  of  life  ;  and  if,  by  a  too  severe  and 


LIFE    OF    NATHANIEL    CHIPMAN.  b> 

austere  government,  a  child  was  sometimes  ruined 
by  creating  in  him  an  utter  impatience  of  all  re- 
straint, and  producing  a  settled  opposition  to  all 
sound  principles,  and  all  legitimate  authority,  yet  in 
most  cases  the  strictness  of  family  government  had  a 
most  salutary  effect.  It  created  in  the  child  an  habit- 
ual submission  to  the  will  of  his  earthly  parent  —  an 
important  if  not  an  indispensable  preparation  for  an 
habitual  obedience  to  the  will  of  our  heavenly  Pa- 
rent. Children,  too,  were  brought  up  in  habits  of 
unremitted  and  patient  industry.  And  when  they 
were  called  from  labor,  to  study,  to  obtain  an  educa- 
tion, this  habit  of  industry  greatly  accelerated  their 
progress. 

The  father  of  the  subject  of  this  memoir  carried  on 
the  business  of  a  blacksmith,  and  cultivated  a  small 
farm,  by  which  he  maintained  a  numerous  family. 
Some  of  the  sons  labored  with  him  in  the  shop,  the 
others  on  the  farm.  He  was  himself  a  most  indus- 
trious man,  and  was  very  particular  in  having  his 
sons  in  constant  employment,  and  all  the  concerns 
of  the  family  were  subjected  to  an  orderly  system,  no 
departure  from  which  was  ever  permitted. 

At  an  early  hour  the  whole  family  retired  to  rest, 
and  all,  from  the  oldest  to  the  youngest,  were  com- 
pelled to  rise  at  an  early  hour,  by  means  of  which 
they  acquired  a  confirmed  habit  of  early  rising,  for 
which  they  were  noted  through  life.  The  father  and 
mother  were  equally  industrious,  and  yet  both  had  a 
taste  for  reading,  and  both  read  more  than  most 
laboring  people.  Still,  it  seemed  never  to  interfere 
with  their  business.     During  the  Avinter   evenings, 


10  LIFE    OF    NATHANIEL    CHIPMAN. 

some  one  in  the  family  read,  and  what  was  read  was 
made  the  subject  of  conversation.  And  it  is  worthy 
of  notice  that  a  well-selected  town  library  had  been 
procured,  and  that  from  this  library  the  family  were 
supplied  with  books. 

The  subject  of  this  memoir  labored  on  the  farm 
until  the  year  1772,  when  he  entered  upon  his  pre- 
paratory studies  for  entering  college,  as  was  custom- 
ary in  those  days,  with  the  minister  of  the  parish. 
And  as  he  entered  upon  his  studies  with  a  sound 
body  and  with  a  sound  mind,  both  alike  invigorated 
by  exercise,  and  with  a  settled  habit  of  industry,  he 
made  rapid  progress  in  his  studies,  and  entered  Yale 
College  in  the  year  1773,  at  the  age  of  21,  having 
spent  but  nine  months  in  his  preparatory  studies. 
For  a  short  time  after  he  entered  college  he  spent 
most  of  his  time  upon  his  recitations ;  but  he  was 
soon  able  to  make  such  progress  in  his  classical  stu- 
dies, that  he  was  obliged  to  spend  but  a  short  time  in 
reviewing  his  lessons  before  recitation.  This  enabled 
him  to  go  forward  of  his  recitations  still  more  rapidly. 
He  followed  this  course  until  he  left  college.  He 
pursued  his  studies  systematically,  devoting  a  certain 
allotted  portion  of  his  time  to  the  languages,  another 
portion  of  his  time  to  his  other  classical  studies,  an- 
other to  general  reading ;  every  day  devoting  some 
time  to  light  reading  for  relaxation.  This  course  he 
strongly  recommended  to  those  who  were  about  to 
enter  college,  saying,  "  if  you  calculate  to  become 
a  scholar  of  any  distinction,  solely  by  studying  your 
lessons,  so  as  to  appear  well  at  your  recitations,  you 
will   be  sadly  disappointed.     Or  if  you   pursue  your 


LIFE    OF    NATHANIEL    CHIPMAN.  11 

studies  without  system,  reading  this  or  that,  as  you 
may  be  prompted  by  the  feelings  of  the  moment,  you 
will  only  dissipate  the  mind.  You  will  never  either 
discipline  the  mind,  or  lay  up  in  order  any  store  of 
useful  knowledge.  If  you  calculate  only  from  day  to 
day  to  get  your  recitations,  you  will  sit  down  to  them 
as  a  task,  and  will  not  acquire  a  taste  for  your  studies, 
or  take  any  pleasure  in  pursuing  them  ;  and  if  you  do 
not,  it  will  be  better  to  quit  your  studies,  no  matter 
how  soon.  Whereas  if  you  pursue  your  studies  sys- 
tematically and  with  diligence,  not  confining  your- 
self to  your  recitations,  but  keeping  in  advance  of 
them,  in  all  your  classical  studies,  and  spending  but  a 
short  time  in  reviewing  them,  you  will  be  far  more 
likely  to  acquire  a  taste  for  your  studies  and  pursue 
them,  not  as  a  dreaded  task,  but  as  a  most  pleasant 
employment." 

He  immediately  took  a  high  standing  in  his  class, 
which  he  maintained  through  his  collegiate  course. 
Although  he  had  a  peculiar  taste  for  the  languages, 
yet  he  had  the  reputation  of  a  universal  scholar. 
He  was  advised  to  prepare  and  present  himself  as  a 
candidate  for  the  premium  provided  to  be  awarded 
to  the  best  linguist  in  the  class ;  but  he  declined  it,  on 
the  ground,  that  his  inclination  led  him  to  spend  as 
much  time  in  the  study  of  the  languages  as  he  ought 
to  do,  without  this  stimulus.  This  was  true ;  for 
during  his  collegiate  course  he  made  himself  perfect 
master  of  the  Hebrew,  Greek,  and  Latin.  And  after 
he  left  college  and  entered  upon  his  profession,  he 
continued  through  life  to  read  the  Old  Testament  in 
Hebrew,  and  the  New  Testament  in  Greek,  with 


12  LIFE    OF    NATHANIEL    CHIPMAN. 

Homer,  Virgil,  and  the  minor  Greek  and  Latin  poets, 
calculating  to  go  through  the  course  once  in  a  year. 

It  appears,  on  examination  of  his  papers,  that  during 
his  collegiate  life,  and  for  a  short  period  after,  he 
exhibited  a  taste  for  poetry,  but  soon  after  he  entered 
on  his  profession  he  desisted  from  writing  poetry 
altogether.  It  is  evident,  therefore,  that  if  he  ever 
entertained  an  idea  of  appearing  before  the  world  as 
a  poet,  he  very  early  abandoned  it.  I  should  not 
therefore,  feel  justified  in  publishing  any  of  his  juvenile 
productions,  were  I  not  persuaded  that  the  man  will, 
by  their  publication  be  more  intimately  known  to  the 
reader.  It  will  I  think  appear  highly  probable  that 
if  he  had  not  derived  a  higher  degree  of  pleasure 
from  the  exercise  of  his  reasoning  faculties,  he  would 
have  been  attracted  by  the  pleasures  of  the  imagina- 
tion to  the  cultivation  of  his  poetic  talents. 

The  following  was  written  in  May,  1775,  soon  after 
the  Lexington  battle,  and  is  all  that  remains  of  the 
manuscript,  the  forepart  of  which  has  been  torn  of]', 
and  cannot  be  found.  The  piece  was  published  in 
the  New  Haven  Postboy,  and  as  it  related  to  British 
oppression  and  the  doubtful  contest  for  liberty  then 
just  commenced,  it  attracted  considerable  notice  at 
the  time. 

Here,  when  a  tyrant  Britain's  sceptre  swayed, 
And  persecuting  zeal  the  land  o'crsprcad, 
Led  by  the  hand  of  Heaven  across  the  flood, 
The  sons  of  Liberty  fixed  their  abode. 
Here  desert  wilds  and  trackless  wastes  they  found, 
Her-  by  thousands  girt  them  round, 

With  painted  arms  they  poured  their  legions  forth, 
In  swarthy  myriads  from  the  pop'loua  north. 


LIFE    OF    NATHANIEL    CHIPMAN.  13 

To  extirpate  those  mighty  sons  of  fame, 
And  from  the  earth  to  raze  their  envied  name. 
In  vain  they  swarmed  —  aimed  their  fleet  shafts  in  vain, 
O'ercome  they  fell  upon  the  ensanguined  plain. 
Now  the  untrod  desert,  cultivated,  smiled ; 
And  towns  were  settled  through  the  pathless  wild ; 
Young  states  were  founded  here  and  lived  at  ease, 
Enjoyed  their  freedom  and  their  rights  in  peace  ; 
Till  France  invaded  —  then  the  British  arms 
Her  boasted  empire  shook  with  dread  alarms. 
With  laurels  were  the  British  armies  crowned, 
And  Canada  the  British  sceptre  owned. 
Now  tyranny  again  has  filled  the  throne, 
And  from  the  British  senate  virtue  flown. 
False  to  their  oaths,  and  to  their  solemn  trust, 
They  tread  the  rights  of  nations  in  the  dust. 
America,  where  freedom  held  her  reign, 
Now  first  is  doomed  to  wear  the  galling  chain. 
Oppressed,  she  groans  beneath  their  lawless  power, 
And  quakes  to  hear  the  gathering  tempest  roar. 
Rise  !  sons  of  freedom  !  close  the  glorious  fight, 
Stand  for  religion,  for  your  country's  right. 
Resist  the  tyrant,  disappoint  his  hopes, 
Fear  not  his  navies,  or  his  veteran  troops. 
Think  on  those  heroes  who  resigned  their  breath 
To  tools  of  tyrants,  ministers  of  death, 
Who  firm,  the  rage  of  tyranny  withstood, 
And  seal'd  the  cause  of  liberty  with  blood. 
Let  their  example  patriot  zeal  inspire, 
And  every  breast  with  martial  ardor  fire. 
Oh  Heaven  !  be  gracious;  save  our  sinking  land, 
Crush  our  proud  foes  with  thine  avenging  hand. 
Kindle  thy  thunders,  bid  thy  lightnings  fly, 
Let  tempests  heave  the  ocean  to  the  sky. 
Plunge  in  the  billowy  deeps  their  naval  power, 
Or  cast  them  shipwreck'd  on  some  unknown  shore 
Let  white-robed  peace  once  more  extend  her  reign, 
And  justice  hold  the  impartial  sword  again. 
2 


14-  LIFE    OF    NATHANIEL    CHIPMAN. 

Under  their  influence  let  an  empire  rise, 
Ami  far  extend  beneath  the  western  skies. 
From  sea  to  sea  —  from  Darien  to  pole, 

Till  time  shall  end,  till  years  shall  cease  to  roll. 

The  following  was  written  to  Mr.  Cogswell,  a 
classmate,  in  April,  1777,  after  he  had  received  a 
lieutenant's  commission  in  the  army. 

No  more,  my  friend,  I  '11  rack  my  hrains, 

To  write  in  high  heroic  strains, 

But  since  I  see  't  is  what  you  choose, 

I  '11  court  the  Hudibrastic  muse. 

And  think  you  then  the  softer  passion 

Of  love,  with  me  is  out  of  fashion  1 

Or  think  my  heart  so  hard  lias  grown, 

No  charm  can  ever  melt  it  down. 

You'd  make  your  friend  a  very  stoic 

For  only  jesting  in  heroic. 

However,  sir,  since  you  've  begun, 

I'll  tell  a  tale  to  help  it  on. 

When  every  beast  could  talk  and  chatter, 

As  learned  /Esop  tells  the  matter, 

On  high  there  hung  a  bunch  of  grapes, 

For  which  a  fox  took  many  leaps; 

But  when  he  found  he  could  not  gain  them, 

lie  thus  affected  to  disdain  them : 

Hang  them,  he  says,  I  '11  leap  no  more, 

For  when  they  're  gained  they  're  cruel  sour. 

Think  you  this  fox  would  never  leap, 

To  catch  another  tempting  grape  ? 

Or  can  you  safely  make  the  assertion, 

That  all  thenceforth  were  his  aversion? 

Or  should  I  now  give  o'er  the  tilt, 

If  one  or  two  have  play'd  the  jilt  / 

Because  a  lass  has  proved  unkind, 

Can  that  forever  sour  my  mind  ? 


LIFE    OF   NATHANIEL    CHIP  MAN.  15 

You  'HJthink  it  strange  what  I  assert, 
But  I  will  venture  to  aver 't 
I  ne'er  found  Heaven  in  smiles  alone, 
Nor  yet  damnation  in  a  frown. 
'T  is  my  opinion,  sensibility 
Should  never  banish  all  tranquillity. 
Avast !  methinks  you  say,  enough 
Of  this  condemned  insipid  stuff. 
Let 's  know  how  you"employ  your  time. 
Why  faith,  you  see, I  'rewriting  rhyme  : 
But  I  no  more  Parnassus  tread, 
A  foolish  whim  has  turned  my  head. 
The  muse  has  lost  her  wonted  charms, 
And  I  am  rushing  on  to  arms. 
No  more  I  sing  of  bloody  fight, 
But  now  prepare  myself  to  try't. 
And  leave  to  you  the  extensive  rule 
You  've  late  acquir'd  in  country  school ; 
Your  whip,  your  ferrule  and  your  pen, 
And  cringing  band  of  pigmy  men. 
Yes,  you  may  laugh  to  see  me  cased 
In  armor,  with  a  cockade  graced  ; 
Nor  will  you  laugh  alone,  I  warrant, 
At  such  a  doughty  huge  knight-errant. 

The  following  were  written  in  camp  at  Valley- 
forge,  in  February,  1778,  to  Mr.  Fitch,  a  classmate, 
afterwards  president  of  Williams  College. 

From  where  the  Schuylkill  rolls  its  waves, 
And  Pennsylvania's  meadows  laves, 
To  Fitch,  mine  and  the  muses  friend, 
These  Hudibrastic  lines  I  send. 
While  you  drink  deep  the  Aonian  fountain, 
Or  range  Parnassus'  sacred  mountain, 
Beneath  those  blooming  shades  recline, 
Surrounded  by  the  immortal  Nine ! 


10  LIFE    OF    NATHANIEL    CHIPMAN. 

Now  tune  your  harp  to  pastoral  strains, 

To  love,  to  joys,  and  tender  pains  ; 

And  while  the  plaintive  numbers  flow, 

With  raptures  feel  your  hosom  glow, 

Or  now  unlock  the  learned  store, 

By  sages  treasured  up  of  yore, 

Weep  o'er  the  fallen  hero's  hearse, 

Trace  mighty  empires  from  their  source, 

See  how  they  rose  hy  freedom's  force, 

See  how  disinterest  made  them  great, 

Or  fell  corruption  sapped  the  state ; 

With  god-like  Plato  moralize, 

Or  soar  with  Homer  to  the  skies  ; 

Or  now  more  modern  works  you  read 

As  judgment,  or  as  fancy  lead. 

And  when  the  over-studied  mind 

To  recreation  is  inclined, 

In  circle  with  the  softer  sex 

Gayly  in  conversation  mix. 

Now  woo  the  mistress  of  your  heart, 

Who  feels  herself  the  pleasing  smart, 

And  glows  alike  with  chaste  desires, 

UnmixM  with  mere  licentious  fires, 

A  passion  to  the  mob  unknown 

And  felt  by  generous  souls  alone. 

While  you  these  rapturous  scenes  pursue, 

Where  pleasure  rises  ever  new ; 

By  cruel  fate  condemned  to  roam 

Far  from  my  friends  and  native  home, 

Where  ruthless  war  in  triumph  reigns, 

And  desolation  sweeps  the  plains. 

Here  must  we  feel  the  inclement  air, 

Bear  all  the  unequalled  toils  of  war  ; 

Meet  hardship  in  a  thousand  forms, 

Now  scorchM  with  heat,  now  drcnchM  with  storms. 

With  cold  and  want  maintain  the  slril'c 

Such  arc  the  ills  of  martial  life, 


LIFE    OF    NATHANIEL    CHIPMAN.  17 

Anon  the  cannons'  war  alarms, 

And  leaders  cry  aloud,  to  arms ! 

Now  polished  arms  in  dread  array 

Beaming,  restore  the  blaze  of  day,  — 

The  streaming  standards  blaze  on  high, 

And  front  to  front  the  hosts  draw  nigh ; 

And  now  they  close  with  direful  shock, 

The  fields  involved  in  flames  and  smoke, 

Disploded  with  tremendous  roar 

That  echoes  to  the  distant  shore, 

While  leaden  deaths  thick  fly  around, 

And  slaughtered  heroes  strew  the  ground. 

Terror  in  every  form  appears, 

Now  shouts,  now  groans  assail  the  ears. 

The  earth  is  drenched  in  streaming  blood 

That  purples  every  neighboring  flood  ; 

Till  one  deep  pierced  in  disarray, 

Is  forced  to  yield  the  fatal  day. 

And  now,  my  friend,  come  view  the  plain, 

Deformed  with  mangled  heaps  of  slain  ; 

See  here  by  deadly  wounds  subdued, 

Thousands  still  weltering  in  their  blood. 

Their  country's  glory  was  their  all, 

For  her  they  fought,  for  her  they  fall. 

Oh  grant,  kind  Heaven,  these  scenes  may  end, 

And  peace  her  olive-branch  extend  ; 

In  freedom  this  fair  land  be  blest, 

Nor  Britain  more  our  right  contest. 

Among  the  papers  of  the  deceased  I  find  transla- 
tions of  several  odes  of  Horace,  and  of  part  of  his 
satires  —  made  during  his  collegiate  life.  The  fol- 
lowing is  a  short  poem  from  Anacreon,  paraphrased. 

Unhappy  he  whose  callous  heart 

Ne'er  felt  the  joys  of  love, 
Whose  bosom,  steeled  to  soft  desires, 

Not  Venus'  self  can  move. 


18  LIFE    OF    N  \  1 1  r  \Nir.l.    CHIPM  Ifl  , 

Unhappy  he  wlio  yields  his  heart 
A  pray  to  Love's  enchanting  snare, 

Whose  hopes  of  bliss  alone  depend 
On  some  inconstant  fair. 

But  more  unhappy  he  who  loves, 

Yet  meets  no  kind  return, 
Whose  sighs,  whose  tears,  and  tender  vows 

Are  all  repaid  with  scorn. 

Soon  after  the  close  of  the  revolutionary  war,  the 
people,  from  habits  of  idleness  and  dissipation,  con- 
tracted during  its  seven  years  continuance,  found 
themselves  impoverished,  and  wholly  unable  to  pay 
their  debts.  And  as  it  ever  is  with  individuals  so  it  is 
with  communities ;  if  they  find  themselves  in  a  poor, 
distressed  condition,  they  never  once  think  of  ascrib- 
ing it  to  the  true  cause,  their  own  misconduct,  but  inva- 
riably charge  it  to  misfortune,  or  what  is  more  natural 
and  more  common,  to  the  wrong-doing  of  others.  The 
distress  of  the  people  was  not  at  that  time  laid  to  the 
oppressive  aristocracy  of  wealthy  individuals,  they 
were  too  few  in  number  to  attract  attention.  But  as 
the  people  felt  the  pressure  of  their  debts  through  the 
courts,  the  lawyers,  and  the  sheriffs,  the  cry  was, 
"  stop  the  courts,"  expel  the  lawyers,  and  resist  the 
sheriffs  ;  and  the  people  began  to  hold  conventions  to 
increase  the  excitement  and  to  organize  an  opposi- 
tion to  the  government.  For  this  purpose  a  conven- 
tion was  holden  at  Wells,  or  rather  in  the  "  edge  of 
Wells,"  for  at  that  day,  (how  it  is  now  I  know  not) 
all  the  inhabitants  of  Wells  invariably  gave  as  the 
place  of  their  residence  "  The  edge  of  Wells." 

The  convention  published  a  journal  of  their  pro- 


LIFE    OF    NATHANIEL    CHIPMAN.  19 

ceedings,  and  the  subject  of  this  memoir,  wrote  and 
published  the  following  as  a  burlesque  on  these  pro- 
ceeding- It  was  considered  at  the  time,  that  it  had 
a  very  salutary  effect.  Many  individuals  who  had 
before  favored  the  malecontents,  were  afterwards  un- 
willing to  be  seen  with  them. 

JOURNAL    OF    THE    WELLS    CONVENTION,    1786. 

Whereas  the  assembly  of  this  state 

Have  dared  audaciously  of  late 

With  purpose  vile  the  constitution 

To  break,  or  make  a  wicked  use  on ; 

By  making  laws  and  raising  taxes, 

And  viler  still,  (so  truth  of  fact  is) 

By  keeping  up  that  smooth-tongued  clan, 

For  ages  cursed  by  God  and  man, 

Attorneys,  whose  eternal  gabble, 

Confounds  the  inexperienced  rabble ; 

Who  quote  down  precedents  and  cases, 

Of  ancient  date,  in  ancient  phrases  ; 

Hard  lessons  taught  by  deep-read  sages 

Whom  mankind  have  revered  for  ages, 

Of  law  the  guardian  and  trustees, 

And  oracles  in  courts  of  justice  ; 

Forbid  the  courts  to  arbitrate, 

And  deal  the  jury  proof  by  weight; 

Would  have  all  actions  tried  by  rules, 

A  tenet  fit  for  slaves  and  fools ; 

And  what  is  worst  in  land  of  freedom, 

The  judge  and  jury  often  heed  'em, 

And  Tom  and  John  must  lose  their  cause, 

And  why?  Forsooth,  they've  broke  the  laws. 

'T  is  liberty  we  have  in  view, 

'T  is  liberty  we  all  pursue. 

To  think,  to  speak,  to  act  and  do, 

And  none  to  say  why  do  ye  so  ? 


20  LIFE    OF    NATHANIEL    CHIPMAN. 

Sorely  aggrieved  at  such  sad  doing, 

"Which  tends  to  work  our  utter  ruin, 

In  edge  of  Wells,  in  log  house  met, 

To  rectify  affairs  of  state, 

We  first  appoint  a  moderator, 

To  stop  or  license  every  prater  ; 

And  then  to  keep  our  votes  in  order, 

With  caution  great  appoint  recorder, 

John,  who  alone  in  time  of  need, 

Of  all  convened  could  write  or  read, 

Then  after  many  a  sage  debate, 

And  argument  of  mighty  weight. 

Now  heard  from  some  what  others  said 

Who  'd  heard  the  constitution  read. 

Though  some  to  this  put  in  demurrer, 

Averred  wc  all  were  in  an  error, 

And  swore  they  knew  the  constitution 

Was  but  an  heathenish  delusion, 

An  image  formed  with  many  a  head, 

Like  what  they  'd  heard  in  Bible  read, 

To  which  the  assemblymen  all  swore 

To  love  it,  cherish  and  adore. 

But  all  to  this  would  not  give  credit, 

Although  they  roundly  swore  and  said  it ; 

As  one  agreed  that  we  '11  petition 

The  assembly  hence  at  every  session, 

So  long  as  wc  shall  think  it  best, 

To  get  our  grievances  redrcst ; 

Inform  them  that  their  laws  of  course 

Before  they  gain  a  binding  force, 

Must  all  be  sent  to  this  convention, 

Or  others,  formed  with  like  intention, 

For  their  consent  and  approbation  — 

Such  right  wc  have  in  legislation. 

For  those  whom  wc  have  thought  most  fitting 

To  vote  for  at  each  freeman's  meeting, 

Through  lack  of  votes  we  never  chose, 

Or  could  not  "o  through  lack  of  clothes  — 


LIFE    OF    NATHANIEL    CHIPMAN.  21 

The  laws  by  us  were  never  made, 
What  reason  then  they  be  obeyed  ? 
And  don't  these  things  in  fact  abridge  us 
Of  all  our  rights  and  privileges  ? 
Beside,  let  fees  be  lessened  down, 
And  judges  sit  for  half  a  crown. 
A  half  a  crown  has  been  the  wages 
Of  common  lab'ring  men  for  ages; 
And  how  can  these  who  sit  at  ease 
With  nought  to  do,  earn  greater  fees  ? 
But  lest  the  world  should  think  us  partial, 
And  this  is  but  a  mobbish  farce  all, 
Let  them  of  us  the  judges  make  — 
We  're  ready  or  to  give  or  take. 
Nor  do  we  lack  men  of  discerning, 
Of  parts  robust  —  a  fig  for  learning, 
Nor  do  we  lack  for  judgelike  gear, 
We  've  rusty  wigs  bobb'd  to  the  ear, 
And  leathern  doublets  neatly  made, 
And  aprons  matched,  in  sign  of  trade  ; 
Striped  linsey-woolsey  vest  and  hose, 
Which  comely  leather  buttons  close, 
Huge  bludgeons  made  of  trusty  oak, 
Will  settle  wranglers  every  stroke, 
And  fit  the  hand  of  justice  well 
As  sword  of  truest  tempered  steel. 
Then  lawyers  from  the  courts  expel, 
Cancel  our  debts,  and  all  is  well. 
But  should  they  finally  neglect 
To  take  the  measures  we  direct, 
Still  fond  of  their  own  power  and  wisdom, 
We  '11  find  effectual  means  to  twist  them. 
And  now  to  prove  we  mean  no  evil, 
To  all  the  world  we  will  be  civil. 
Firmly  resolved  to  murder  no  man, 
Plunder,  nor  rob,  nor  ravish  woman. 
Not  but  if  hunger  press  us  hard, 
We  II  take  a  hen  from  neighbor's  yard, 
3 


22  LIFE    OF    NATHANIEL    CHIPMAN. 

Or  now  and  then  a  lusty  sheep, 
Or  leg  of  pork  while  the  owners  sleep, 
To  this  we  have  prescriptive  right, 
If  done  with  caution,  while  'tis  night. 
Nor  can  we  less,  ere  we  conclude, 
Than  give  as  due  in  gratitude, 
Our  thanks  to  Amos  what's  his  name  ? 
Whose  piece  eclipses  Bunyan's  fame, 
Well  vindicates  what  we've  agreed  to, 
And  stops  attorneys  just  as  we  do, 
Proves  hut  for  them  we  might  refuse 
To  pay  our  long-forgotten  dues, 
To  creditors  might  hid  defiance, 
And  look  at  sheriffs,  bold  as  lions. 

The  following,  on  the  death  of  a  child,  occasioned 
by  a  scald,  was  written  in  the  year  1788.  And  it 
is  very  certain  that  he  never  wrote  a  line  of  poetry 
afterwards. 

Why,  dear  Amanda,  why  that  mournful  look, 
Why  ceaseless  flows  the  tear,  why  heaves  the  breast  ? 
Because  thy  babe,  sweet  innocent,  is  gone 
To  dwell  embosomed  in  eternal  rest. 

Hard,  hard  the  lot  to  see  the  lovely  form 
Just  blooming  into  life,  with  cruel  smart 
And  pangs  convulsive  yield  a  prey  to  death. 
How  agonizing  to  a  parent's  heart ! 

Flow  then  the  tear  and  heave  the  aching  breast 

Paternal  tenderness  and  nature  bid  ; 

Yet  not  too  long  indulge  the  pleasing  woe, 

Nor  wrong  the  living  while  you  mourn  the  dead. 

Ah  !  can  a  mother  soon  to  oblivion  yield 
Those  little  actions,  pledge  of  future  joy, 
The  endearing  smile,  the  more  than  fond  embrace, 
And  in  distress  the  mute  imploring  eye. 


LIFE    OF    NATHANIEL    CHIPMAN.  23 

Descend,  sweet  cherub,  from  the  blest  abode, 
Oft  deign  to  visit  those  thou  'st  left  behind, 
In  slumbers  gently  soothe  a  parent's  cares, 
And  whisper  comfort  to  the  anxious  mind. 

To  souls  enlarged,  though  in  a  realm  of  bliss, 
Such  office  sure  must  yield  a  sweet  employ ; 
To  soothe  parental  grief,  to  calm  distress, 
Must  give  a  zest  e'en  to  celestial  joy. 

The  reader  will  notice  that  the  subject  of  this 
memoir  left  college  in  the  spring  of  the  year  1777; 
and  in  bringing  together  such  of  his  poetical  produc- 
tions as  it  seemed  proper  to  publish,  I  have  gone 
forward  to  the  year  1788.  We  will  now  revert  to 
the  spring  of  the  year  1777,  which  was  his  senior 
year,  when  he  obtained  a  lieutenant's  commission, 
and  immediately  joined  the  army.  At  the  ensuing 
commencement  his  degree  was  conferred  in  his  ab- 
sence. While  in  the  army  he  maintained  a  high 
standing  for  an  officer  of  his  rank,  but  I  have  been 
able  to  learn  nothing  very  particular  in  relation  to 
him  while  there,  except  what  appears  from  the  fore- 
going poetic  epistle  to  Mr.  Fitch,  and  from  the  fol- 
lowing letters  written  by  him  to  some  of  his  class- 
mates, of  which  he  preserved  copies. 

The  following  letter  to  Elisha  Lee  is  dated  Valley- 
Forge,  April  10,  1778. 

Dear  Sir,  —  I  have  received  letters  from  many  of 
my  old  friends,  but  from  you,  Fitch  and  Coggswell, 
whom  I  esteemed  my  most  intimate  friends,  not  a 
line.  Letter  after  letter  have  I  sent  to  no  purpose  — 
they  may  have  indeed  miscarried,  though  the  oppor- 
tunities were  very  direct.     I  am  informed  by  letter 


24  LIFE    OF    NATHANIEL    CHIP  MAN. 

from  V ,  that  you  are  still  teaching  a  school  at 

Middletdwn. 

How  are  the  times  in  Connecticut  ?  What  the 
run  of  politics  ?  What  plan  of  operations  have  your 
chimney-corner  generals  struck  out  for  the  next  cam- 
paign ?  They  have  doubtless  something  in  agitation. 
I  saw  an  item  of  this  in  a  letter  from  a  gentleman  of 
your  acquaintance  ;  I  will  give  it  you  in  his  own 
words,  as  near  as  I  can  recollect  them.  "  It  is  a  dis- 
grace to  humanity,  to  Britons  and  Americans,  that 
two  such  powerful  armies,  on  whom  the  fate  of  Eu- 
rope and  America  depends,  should  lie  inactive.  What 
can  Howe,  what  can  Washington  mean  ?  What  stu- 
pidity! It  is  not  enough  that  we  carried  the  cam- 
paign through  almost  half  the  winter?  No,  we  must 
still  keep  the  field  in  defiance  of  frost  and  snow, 
or  what  at  that  season  is  still  worse,  rain  and  hail, 
though  one  half  the  army  was  disbanded  and  the 
other  half  worn  out  with  fatigue.  Nothing  less  will 
suffice  than  the  siege  of  Philadelphia  in  the  depth  of 
winter.  How  mean,  how  despicable  must  such  per- 
sons appear  to  men  of  the  least  reflection.  Persons 
who  never  saw  an  army,  or  read  of  a  battle,  except 
in  a  newspaper,  who,  for  intelligence,  depend  on 
common  report  at  three  hundred  miles  distance,  and 
yet  would  persuade  the  world  that  they  could  direct 
the  movements  of  an  army  better  than  an  experi- 
enced general  on  the  spot,  who  is  minutely  informed 
of  every  circumstance  relative  to  both  armies.  That 
men,  who  pretend  to  be  rational,  should  speak  in  this 
manner,  is  indeed  '  a  disgrace  to  humanity." 

There  is  another  thing  that  raises  my  indignation 


LIFE    OF    NATHANIEL    CHIPMAN.  25 

still  higher.  I  learn  that  it  is  a  common  topic  of  con- 
versation in  Connecticut,  and,  indeed,  through  New 
England,  that  General  Washington  will  not  fight. 
"  Let  Gates,"  say  they,  "  take  the  command,  and  we 
shall  see  an  end  of  the  war."  General  Gates  has 
done  well,  he  has  done  gloriously  ;  I  have  as  high  a 
sense  of  his  merit  as  any  man.  But  the  truth  is,  Bur- 
goyne  failed  himself,  and  Gates  conquered  him.  Be- 
sides, Gates  was  in  a  situation  to  command  what 
assistance  he  pleased,  and  that  the  flower  of  the  con- 
tinent. What  shall  we  say  of  Washington  here  at 
the  head  of  fifteen,  or  at  most,  twenty  thousand  men, 
for  his  army  never  exceeded  that  number,  and  one 
third  of  them  Pennsylvania  militia,  who  for  the  most 
part  never  dared  to  face  an  enemy.  I  have  seen, 
when  our  regiment  was  closely  engaged,  and  almost 
surrounded,  seven  hundred  of  them  quit  the  field 
without  firing  a  gun.  On  the  seventh  of  December, 
the  army  of  the  enemy,  exclusive  of  those  left  to  gar- 
rison Philadelphia,  and  the  neighboring  posts,  amount- 
ed to  eleven  thousand  effective  men.  From  this,  you 
may  judge  of  their  strength  at  the  opening  of  the 
campaign.  There  is  not  another  state  on  the  conti- 
nent where  so  many  traitors  are  to  be  found,  as  in 
this,  and  yet  General  Washington  bafHed  all  the  strat- 
agems of  a  wary,  politic  and  experienced  general, 
and  has  several  times  fought  him  not  unsuccessfully. 
All  General  Gates  has  done  does  not  render  it  even 
probable,  that  in  General  Washington's  situation,  he 
would  not  have  been  totally  defeated.  The  army,  to 
a  man,  except  those  who  conquered  under  Gates, 
have  the  highest  opinion  of  General   Washington. 


-'(i  LIFE    OF    NATHANIEL    CHIPMAN. 

They  love,  I  had  almost  said,  they  adore  him.  While 
he  lives,  be  assured,  they  will  never  brook  the  com- 
mand of  another.  I  cannot  but  observe  here,  that 
nothing  has  been  more  detrimental  to  us,  than  pub- 
licly exaggerating  our  strength,  and  diminishing  that 
of  the  enemy ;  you  will  readily  perceive  the  conse- 
quences. When  the  campaign  will  open  I  know  not. 
The  troops  spend  their  time  in  discipline,  in  which 
they  make  great  proficiency.  We  have  for  our 
inspector-general,  Baron  Steuben,  who  has  been  aid- 
de-camp  to  the  king  of  Prussia,  and  lieutenant-gen- 
eral in  his  service. 

The  following  letter  to  Mr.  Lee  was  dated,  Camp, 
at  Valley-Forge  in  April,  1778  : 

Dear  Sir,  —  I  had  just  sealed  my  letter  No.  3, 
when  yours  of  the  25th  instant  came  to  hand.  I 
have  prevailed  on  the  post  to  wait  for  this.  I  have 
in  a  former  letter  given  you  a  particular  account  of 
my  adventures  since  I  saw  you  ;  but  I  suppose  the 
letter  miscarried.  I  have  not  now  time  to  enter  into 
details.  As  to  the  situation  of  the  armies,  Howe  is  in 
Philadelphia,  and  we  are  encamped  and  strongly  for- 
tified twenty  miles  above,  on  the  banks  of  the  Schuyl- 
kill. I  can  give  you  no  account  of  their  intentions, 
since,  whatever  may  be  the  reason,  I  have  not  of  late 
been  admitted  to  the  cabinet.  The  officers  of  the 
army  are  at  present  in  a  great  dilemma,  whether  in 
contempt  of  poverty  and  the  unmerited  reproaches  of 
their  ungrateful  constituents,  they  shall  still  continue 
in  the  service  of  their  country,  or  (|iiit,  and  join  with 
the  rest  of  the  world  in  the  pursuit  of  riches.  I  depend 
upon  it,  if  something  is  nut  dune,  most  oi'  them  will 


LIFE    OF    NATHANIEL    CHIPMAN.  27 

resign,  and  that  soon.  I  have  no  expectation  of  see- 
ing you  in  the  country  till  the  close  of  another  cam- 
paign. I  have  a  letter  from  Swift.  Please  make  him 
my  compliments,  and  tell  him  I  shall  not  fail  of  an- 
swering him  by  the  first  opportunity. 

The  following  letter  to  Mr.  Fitch  was  dated  White 
Plains,  July  30th,  1778. 

My  Old  Friend,  —  I  received  yours  of  the  3d  of 
June  on  the  29th  of  the  same  month,  at  Monmouth, 
the  day  after  the  action.  I  shall  omit  any  account  of 
that  affair.  You  must  have  seen  more  particular  ac- 
counts of  it  than  I  am  able  to  give.  Since  we  arrived 
at  the  Plains  I  had  the  pleasure  of  meeting  Coggs- 
well  and  Barker  again  ;  spent  an  evening  with  them 
and  Selden  at  Stanford,  on  their  march  to  the  east- 
ward. 

You  tell  me  that  you  have  neglected  the  Muses  of 
late  ;  I  will  venture  to  assign  the  ladies  as  the  cause, 
and,  indeed,  I  cannot  blame  you  for  paying  them 
so  much  attention ;  I  should  doubtless  do  the  same. 
But,  my  dear  friend,  by  this  neglect  of  the  Muses  you 
not  only  injure  yourself,  but  many  heroes,  who  ex- 
pected, as  the  only  reward  of  their  services,  to  have 
their  names  hitched  into  rhyme  by  some  poet. 

As  rising  gales 

That  swell  the  spreading  sails 

To  waft  the  merchant  o'er  the  main, 
As  clouds,  in  vernal  showers  distill'd, 
Enrich  the  new-sown  field, 

And  joy  the  laboring  swain, 
Such  is  the  muse  to  those  who  run 

In  virtue's  arduous  ways, 
She  bids  them  here  enjoy  renown 

And  sings  to  future  times  their  praise. 


28  LIFE    OF    NATHANIEL    (HITMAN. 

You  will  give  full  credit  when  I  tell  you  that  I  have 
just  translated  the  above  from  Pindar.  And  to  direct 
you  in  your  duty,  I  shall  give  you  another  lesson  from 
the  same. 

Not  Envy's  self  shall  blast  the  praise 
Of  those  who  jrain  the  martial  prize; 
The  muse  on  towering  wing  shall  rise 

And  sing  them  in  immortal  lays. 

But  wisdom  is  the  sacred  gift  of  Heaven 

To  use  aright  whate'er  the  gods  have  given. 

1  fancy  Pindar  would  shine  in  my  translation.  A 
great  pity  it  is  that  I  have  not  leisure  to  give  him  to 
the  world  in  a  new  dress.  But  this  and  many  other 
plans  of  like  importance  are  laid  aside  for  want  of 
time.     I  have  only  time  to  add  I  am  truly  yours. 

To  Mr.  Fitch,  dated  Camp,  at  Fredericksburg,  Oc- 
tober 3,  1778. 

Dear  Friend,  —  I  lately  saw  a  letter  to  our  friend 

B ,  in  which  you  make  very  kind  mention  of  my 

name,  but  was  not  a  little  surprised  that  you  have  so 
long  neglected  to  write  me.  I  immediately  examined 
the  letters  which  have  passed  between  us,  and  found 
you  were  one  in  my  debt ;  and  depend  on  it,  I  shall 
demand  payment  without  conscience. 

Before  this  reaches  you,  I  shall,  in  all  probability, 
have  resigned.  My  wages,  which  are  my  sole  de- 
pendence, are  by  no  means  equal  to  my  expenses.  I 
am  already  in  debt,  and  a  continuance  in  the  service, 
to  me  affords  no  other  prospect  than  that  of  utter 
ruin.  If  I  lesion,  unqualified  as  I  am  for  business, 
and  without  friends,  at  least  powerful  friends,  I  shall 
find  myself  extremely  embarrassed  —  and  often  apply 


LIFE    OF    NATHANIEL   CHIPMAN.  29 

to  myself  certain  lines  of  Thomson  with  a  little  alter- 
ation : 

A  quick  returning  pang 

Shoots  through  the  conscious  heart  where  honor  still, 

And  great  designs  against  the  oppressive  load 

Of  poverty,  by  fits  impatient  heave. 

Although  it  is  a  great  mortification  to  me  to  resign, 
it  is  a  greater  to  hold  the  rank,  and  not  be  able  to 
support  the  character  of  a  gentleman.  I  forbear  any 
reflections  on  the  country,  yet  I  cannot  but  pity  the 
condition  of  the  officers,  many  of  whom  I  know  to  be 
in  a  worse  condition  than  myself,  as  they  are  more 
reduced,  and  have  more  to  provide  for.  It  is  very 
shocking  to  think  that  many  brave  fellows  who  have 
been  accustomed  to  command  others,  and  to  be  treat- 
ed with  respect,  who  have  a  thousand  times  exposed 
their  lives,  have  spent  their  estates  and  ruined  their 
constitutions  in  defence  of  their  country,  must  soon 
with  their  families  be  reduced  to  want.  And  perhaps 
derided  and  insulted  by  those  whom  they  have  de- 
fended. Forbid  it,  humanity  !  forbid  it  Heaven.  You 
will,  as  a  friend,  pardon  these  apprehensions,  gloomy 
indeed,  but,  as  I  think,  founded  in  reason. 

I  shall  spend  the  winter  in  Salisbury,  Connecticut, 
in  the  study  of  law ;  though  I  cannot  but  regret 
that  it  is  not  in  my  power  to  spend  considerable  time 
in  general  studies,  before  applying  myself  to  a  par- 
ticular one.  Opportunities  of  writing  will  doubtless 
be  less  frequent  after  I  leave  the  service,  but  I  shall 
embrace  every  one  that  occurs,  and  shall  from  your 
friendship  expect  the  same.  And  1  will  also  promise 
to  write  a  better  hand,  or  procure  some  one  to  copy. 
1 


30  LIFE    OF    NATHANIEL    CHIPMAN. 

Winter  quarters  arc  now  in  agitation.  Litchfield  is 
talked  of  for  this  division.  Where  they  will  be,  is 
uncertain  as  yet.  I  think,  from  all  appearances,  we 
may  reasonably  conclude  that  the  glorious  contest 
draws  near  a  glorious  conclusion,  when,  with  the 
blessing  of  heaven,  we  may  enjoy  the  sweets  of  lib- 
erty in  peace. 

To  Mr.  Fitch,  dated  Salisbury,  1st  January,  1779. 

My  dfar  Friend,  —  What  mean  you  by  silk  bags? 
Are  you  so  unacquainted  with  modern  fashions  ? 
Such  bags  have  long  been  out  of  fashion  with  law- 
yers. In  their  stead  are  introduced  bags  made  of 
harpies'  skins.  They  are  covered  with  a  very  soft 
down,  the  color  changeable  like  a  chameleon,  but  not 
like  them  stuffed  with  air.  Their  properties  are  em- 
blematical not  only  of  the  present  disposition  of  the 
fraternity,  but  of  the  whole  human  race.  Although 
inanimate,  they  have  a  most  voracious  appetite.  Had 
Solomon  lived  in  these  times,  he  would  have  found 
one  tiling  more  which  never  cries  enough.  The 
color,  varying  with  the  beholder's  fancy,  has  such  a 
peculiar  magic,  that  whoever  has  once  fixed  his  eyes 
upon  them  can  never  rest,  until  he  has  given  up  his 
whole  interest  to  be  devoured. 

I  have  not  yet  taken  the  wrangler's,  I  would  say, 
the  attorney's  oath,  but  expect  to  take  it  in  March, 
and  then  I  shall  probably  settle  in  Bennington,  where 
I  shall  indeed  be  rara  avis  in  tcrris,  for  there  is  not 
an  attorney  in  the  state.  Think,  Fitch,  think  what  a 
figure  I  shall  make,  when  I  become  the  oracle  of  law 
to  the  state  of  Vermont. 


LIFE    OF    NATHANIEL    CHIPMAN.  31 

To  Mr.  Fitch,  dated  Salisbury,  March  20th,  1779. 

Well,  my  dear  friend,  I  have  at  length  passed  the 
Rubicon,  and  am  in  full  march  to  the  capital  of  the 
empire.  In  plain  language,  I  have  been  dubbed  an 
attorney,  and  propose,  in  a  few  days,  to  take  up  my 
abode  in  the  state  of  Vermont.  It  would  be  the 
height  of  my  wishes  to  spend  the  summer  at  our  alma 
mater,  with  you  and  others  of  my  classical  friends. 
But  I  am  obliged  to  bid  adieu  to  all  these  charming 
prospects,  and  plunge  into  business.  I  must  hope, 
however,  by  favor  of  the  Muses,  to  participate  in  your 
happiness.  But  how,  my  friend,  how  happens  it  that 
you  decline  the  desk  ?  You,  a  person,  as  we  thought, 
destined,  by  nature  and  inclination,  to  be  an  honor  to 
that  sacred  employment.  Are  you  deterred  by  a  few 
of  our  classmates  who  are  engaged  in  it,  and  who  are 
a  disgrace  to  the  order,  or  rather  to  themselves  in 
the  order?  Though  I  wholly  disclaim  the  thought  of 
being  a  deist,  as  some  have  represented  me,  I  own 
that  I  am  somewhat  liberal  in  my  religious  senti- 
ments, but  not  too  liberal  to  believe  that  none  can  do 
more  to  promote  the  happiness  of  man,  whether  in 
public  or  private  life,  than  a  learned  and  pious  clergy. 
After  all,  I  say  not  this  to  deter  you  from  the  study  of 
the  law.  I  should  be  very  happy  to  have  you  as  a 
brother  as  well  as  a  friend  in  that  profession.  One 
thing,  however,  we  must  both  forget,  that  is  our  diffi- 
dence ;  it  has  no  place  at  the  bar.  Ha,  ha,  ha.  I 
cannot  but  laugh  to  think  what  a  flash  we  shall  make, 
when  we  come  to  be  members  of  congress.  And 
then  again,  I  am  vexed  when  I  think  how  many  steps 
there  are  by  which  we  must  mount  to  that  pinnacle 


32  LIFE    OF    NATHANIEL    CHIPMAN. 

of  happiness.  Let 's  see.  First,  an  attorney  ;  then, 
a  selectman  ;  a  huffing  justice  ;  a  deputy  ;  an  assist- 
ant ; *  a  member  of  congress.  Now,  is  not  this  a 
little  vexing  ?  However,  we  must  make  the  best  of 
it.  Since  we  shall  in  future  be  at  so  great  a  distance 
from  each  other,  I  feel  anxious  for  a  continuance  of 
our  correspondence.  Should  Tracy  remain  through 
the  summer  at  Litchfield,  it  may  be  carried  on  through 
him,  or  perhaps  some  other  w;iy  more  direct  may  be 
found.  But  the  difficulty  is,  I  shall  not  know  to  what 
place  to  direct  my  letters.  Nor  will  you,  for  I  am 
not  fully  determined  in  what  place  I  shall  settle.  In 
the  direction  of  your  letters,  in  future,  you  will  omit 
lieutenant.  I  shall  not  be  known  by  that  title  in 
Vermont. 

The  following  is  a  copy  of  the  letter  in  which 
Lieutenant  Chipman  resigned  his  commission.  It 
is  dated  Camp  Fredericksburg,  October  10,  1778, 
and  addressed  to  General  Washington,  the  com- 
mander-in-chief. 

May  it  please  your  Excellency,  —  With  reluct- 
ance would  I  quit  the  service  of  my  country,  could 
I  subsist  myself  in  it  with  honor.  Every  one  must 
be  sensible  that  a  subaltern's  wages  are  in  no  degree 
equal  to  his  expenses  ;  he  must  necessarily  have  some 
other  resources,  or  make  a  contemptible  appearance ; 
he  must,  in  fact,  become  a  beggar.  Jf  I  may  be 
allowed  to  judge  my  own  heart,  I  am  ready,  in  behalf 
of  my  country,  to  sacrifice  every  consideration  of 
interest   as   far   as   may   be    consistent  with   honor. 

1  A  representative  in  the  assembly,  a  member  of  the  court  in  Con- 
necticut. 


LIFE    OF    NATHANIEL    CHIPMAN.  33 

When  I  engaged  in  the  service,  I  had  no  fortune  of 
my  own.  My  parents,  on  whom  alone  was  my  whole 
dependence,  were,  the  last  year,  driven  from  their 
habitation,  plundered,  and,  for  the  present,  reduced 
to  poverty ;  so  that  my  wages  have  been  my  only 
support.  These,  at  first,  afforded  an  honorable  sub- 
sistence ;  but,  so  far  is  this  from  being  the  case  at 
present,  that  I  find  it  impossible  to  continue  in  the 
service  without  involving  myself  deeper  in  debt, 
without  the  least  prospect  of  being  able  to  pay  the 
debts  which  I  have  already  contracted,  unless  I  can 
obtain  a  dismission.  I  feel  a  great  reluctance  to  that 
dependence  which  is  the  necessary  consequence  of 
being  in  debt;  for,  as  I  am  unable  to  answer  the 
demands  of  my  creditors,  it  will  be  in  their  power  to 
ruin  me  when  they  please. 

It  is,  indeed,  a  great  mortification  to  be  obliged  to 
resign,  but  a  greater  to  hold  the  rank,  while  unable 
to  support  the  character,  of  an  officer.  Under  these 
circumstances,  which  are  my  own  without  exaggera- 
tion, I  am  persuaded  that  it  is  a  duty  which  I  owe 
to  myself  and  others,  if  possible,  to  procure  a  dis- 
charge from  the  service.  This  is  my  request,  which 
I  hope,  on  a  thorough  examination,  will  not  be 
thought  unreasonable. 

It  seemed  necessary  to  resort  to  the  foregoing  let- 
ters, they  being  the  only  source  of  information  rela- 
tive to  that  part  of  his  life  which  was  spent  in  the 
army.  It  was  indeed  understood  at  the  time,  that  he 
kept  with  him  in  the  camp  his  Greek  and  Latin 
classics.     And  that  instead  of  losing  his  knowledge 


34  LIFE    OF    NATHANIEL    CHIP  MAN. 

of  the  languages,  after  he  left  college,  as  is  too  often 
the  case  with  college  graduates,  he  made  great  profi- 
ciency in  perfecting  his  knowledge  of  them.  That 
he  paid  this  attention  to  the  languages  while  in  the 
army  is  rendered  very  certain  by  the  known  fact  that 
he  paid  the  same  attention  to  them  in  after  life.  He 
was  frequently  involved  in  business  of  a  laborious 
and  perplexing  nature,  and  yet  he  would  find  time  to 
devote  to  the  acquisition  of  knowledge.  And  he 
always  gained  time  by  wasting  less  time  in  sleep  than 
most  others.  Until  the  latter  part  of  his  life,  from 
five  to  six  hours  sleep  in  twenty-four  was  all  that  his 
constitution  required.  While  in  college,  and  in  his 
after  life,  he  was  in  the  habit  of  reading  several 
hours  by  candlelight  in  the  morning,  before  others 
were  up,  except  during  the  short  nights  in  summer. 
Fortunately,  until  near  the  close  of  his  life,  his  eyes 
would  bear  this  hard  usage  without  injury.  He  un- 
doubtedly pursued  this  course  while  in  the  army, 
and  must  have  found  much  time  for  reading  and 
writing,  especially  while  in  winter  quarters.  And 
yet,  notwithstanding  his  confirmed  habit  of  improving 
every  spare  moment  in  his  literary  pursuits,  I  was  not 
quite  prepared  for  the  fact,  that  so  soon  after  the  dust 
and  smoke  of  the  battle  of  Monmouth  had  passed  oil', 
he  was  discovered  intently  engaged  iii  translating 
Pindar. 

He  was  very  fond  of  works  of  fiction,  and  read  all 
the  novels  that  came  in  his  way,  and  read  them  with 
uncommon  rapidity.  But  he  resorted  to  novels  and 
other  light  reading,  for  relaxation,  when  the  mind 
was   fatigued  by  intense  application   too  lung  con- 


LIFE    OF    NATHANIEL    CHIPMAN.  35 

tinued.  He  seemed  to  have  no  taste  for  those  diver- 
sions to  which  most  others  resort  for  relaxation.  He 
never,  either  while  in  college  or  in  after  life,  spent 
much  time  in  the  study  of  mathematics.  Whenever 
he  had  occasion  to  solve  a  mathematical  question, 
he  would  do  it  with  great  ease  and  rapidity,  but 
he  never  attended  to  mathematical  studies,  for  the 
purpose  of  disciplining  his  mind.  He  seemed  to  be 
conscious  that  his  mind  required  no  such  discipline. 

It  has  been  seen  that  he  was  admitted  to  the  bar, 
in  the  county  of  Litchfield,  and  state  of  Connecticut, 
in  March,  1779  ;  after  having  studied  law  between 
four  and  five  months.  He  soon  after  set  out  for 
Vermont,  and  arrived  at  his  father's  house  in  Tin- 
mouth  on  the  10th  of  April.  He  settled  inTinmouth, 
that  being  then  the  shire  town  in  Rutland  county, 
and  commenced  practice  in  the  then  four  counties  of 
Bennington  and  Rutland,  Windham  and  Windsor, 
and  was  immediately  a  prominent  member  of  the 
bar.  He  was  most  distinguished  in  the  argument  of 
questions  of  law  to  the  court,  but  frequently  argued 
causes  to  the  jury  with  great  effect.  When  it  was 
his  business  to  detect  and  expose  fraud  or  oppression, 
he  excelled  as  an  advocate.  But  it  was  soon  ob- 
served that  he  did  not  argue  a  bad  cause  as  effect- 
ually as  some  others.  And  after  I  came  to  the  bar 
I  thought  I  could  discover,  especially  if  I  could  catch 
his  eye,  whether  he  had  confidence  in  his  case  or 
not.  The  fact  seemed  to  be,  that  he  had  acquired 
so  confirmed  a  habit  of  seeking  after  truth  con- 
scientiously, that  he  could  not  readily  enter  into  the 


36  LIFE    OF    NATHANIEL    CHIPMAN. 

feelings  of  his  client,  imbibe  his  prejudices,  and  with 
him  have  a  full  conviction  of  the  justice  of  his  cause, 
without  which  no  advocate  can  make  the  most  of  a 
bad  cause.  I  shall  enlarge  on  this  subject  when  I 
come  to  treat  of  his  qualifications  as  a  judge. 


CHAPTER  II. 

Secret  Negotiations  with  the  British  Authorities  in  Canada  —  Extract 
from  the  "  Life  of  Brant,"  containing  a  Charge  of  Criminality  against 
the  Leading  Men  in  Vermont  —  Vindication  of  those  Patriots  against 
the  Charge. 

It  has  become  a  matter  of  history,  and  is  generally 
known,  that  at  the  session  of  the  legislature  holden  at 
Charlestown,  in  October,  1781,  Governor  Chittenden 
received  a  despatch  from  General  St.  Ledger,  making 
an  excuse  for  the  killing  of  Tupper,  an  American 
sergeant,  by  a  British  scout ;  and  which  necessarily 
disclosed  the  secret  armistice,  which  had  sometime 
before  been  agreed  on,  between  the  executive  of  this 
state  and  the  governor  of  Canada.  The  contents  of 
the  despatch  had  in  some  way  become  known  to  cer- 
tain individuals  who  were  not  in  the  secret.  This  at 
once  produced  a  high  degree  of  excitement,  and 
raised  a  clamor  which  it  was  necessary  to  silence 
without  delay.  And  no  other  mode  of  doing  this 
occurred  at  the  time  but  that  of  remoulding  the 
despatch,  leaving  out  everything  which  related  to  the 
armistice,  so  that  it  might  be  communicated  to  the 
legislature.  At  this  time  there  were  two  parties  in 
the  state.  At  the  head  of  one  party  was  Governor 
Chittenden,  Ira  Allen  and  others,  called  the  old  corps. 
Nathaniel  Chipman  was  ranked  with  the  opposition, 


"  *  JSL  JL  • 


38  LIFE    OF    NATHANIEL    CHIPMAN. 

yet  Governor  Chittenden  had  such  confidence  in  his 
talents  and  patriotism,  that  he  committed  the  despatch 
to  him  for  revision ;  which  task  he  speedily  per- 
formed, and  in  a  satisfactory  manner.  For  when  the 
revised  despatch  was  read  in  the  asscmhly,  they  were 
satisfied  that  their  suspicions  had  been  without  foun- 
dation ;  the  excitement  was  allayed,  and  the  legisla- 
ture proceeded  with  the  ordinary  business  of  the 
session.  It  will  be  proper,  in  this  place,  to  make  some 
remarks  upon  this  secret  negotiation  with  the  gover- 
nor of  Canada,  for  the  subject  of  this  memoir  was 
connected  with  it. 

Certain  historians,  unacquainted  with  the  early 
history  of  this  state,  have  not  scrupled  to  charge 
Governor  Chittenden  and  his  compatriots  with  trea- 
son against  the  United  States,  for  entering  into  a 
secret  negotiation  with  their  enemies,  with  the  inten- 
tion of  joining  the  British  in  the  war  of  the  revolu- 
tion —  a  charge  without  the  least  foundation  in  fact. 
And  should  the  present  generation  sutler  this  stain  to 
rest  on  the  characters  of  our  fathers,  so  distinguished 
among  that  band  of  patriots  who  achieved  our  inde- 
pendence, it  would  indicate  a  degeneracy  which  they 
have  not  yet  reached.  Facts,  which  have  ever  been 
known  to  the  people  of  this  state,  will  convince 
every  unprejudiced  mind  that,  not  only  were  Governor 
Chittenden  and  the  executive  council  of  this  state 
actuated    by   the    purest   patriotism,    but   that   their 

acity  and  wisdom  were  remarkably  conspicuous 
through  the  whole  of  the  negotiation,  from  the  com- 
mencement to  its  close ;  a  period  of  several  years  ; 
and  that  it  proved,  as  they  intended  and  foresaw  it 


LIFE    OF    NATHANIEL    CHIPMAN.  39 

would  prove,  as  beneficial  to  the  United  States  as  to 
the  people  of  this  state. 

At  the  commencement  of  the  revolutionary  war, 
the  people  on  the  New  Hampshire  grants  were  more 
united  in  defence  of  the  country,  than  the  people  in 
any  one  of  the  then  United  States.  A  less  propor- 
tion of  tories  were  found  among  them  than  were 
found  in  the  other  states.  The  causes  of  this  are 
obvious  to  those  who  were  intimately  acquainted 
with  our  early  history.  Great  numbers  of  the  early 
settlers  on  the  New  Hampshire  Grants,  were  of  the 
sect  of  new-lights  or  separates,  who  fled  from  perse- 
cution in  the  New  England  States,  and  found  an 
asylum  here,  where  they  enjoyed  their  religious  lib- 
erty. And  history  informs  us  that  every  people  on 
earth  who  have  by  persecution  been  forced  to  con- 
tend for  their  religious  liberty,  have  ever  been  pre- 
pared to  contend  with  equal  perseverance  for  their 
civil  rights.  Accordingly,  in  the  contest  with  Great 
Britain  for  our  civil  and  political  rights,  this  sect  of 
Christians  in  the  New  Hampshire  grants  were  firmly 
united  in  the  cause  of  their  country.  It  is  believed 
there  was  not  a  single  exception. 

Add  to  this,  that  the  people  of  this  territory  had  for 
a  number  of  years  been  united  and  organized  in  op- 
position to  the  unjust  claim  of  New  York,  and  had 
thus  far  been  successful.  When  therefore  their  rights 
were  invaded  from  another  quarter,  they  were  per- 
fectly prepared  for  resistance.  They  had  no  habit  of 
quiet  submission  to  the  powers  that  be,  to  be  broken 
up,  but  were  already  harnessed  for  the  conflict.  Still 
further,  the  government  of  Great  Britain  had  decided 


40  LIFE    OF    NATHANIEL    CHIP  MAN. 

that  this  territory  was  within  the  jurisdiction  of  New 
York.  Nothing  therefore  was  to  be  expected  from 
that  government  but  a  confirmation  of  the  New  York 
title,  should  the  United  States  fail  of  establishing  their 
independence.  On  the  other  hand  they  had  reason 
to  hope,  that  if  the  United  States  should  achieve 
their  independence,  the  claim  of  New  York  would  be 
set  aside,  and  Vermont  would  become  an  indepen- 
dent state.  Such  a  people,  thus  situated,  could  not 
but  be  united  as  they  were  in  the  cause  of  their 
country,  and  support  it  as  they  did  to  the  last,  with 
unabated  ardor.  Could  such  a  people  have  been 
influenced  to  join  their  enemies?  a  step  forbidden 
alike  by  patriotism  and  by  self-interest. 

Again,  after  the  battle  of  Bennington,  and  the 
capture  of  Burgoyne,  scarce  a  doubt  was  entertained 
that  the  United  States  would  achieve  their  inde- 
pendence. In  what  situation,  then,  was  Vermont  to 
be  placed  by  this  secret  negotiation  ?  Was  she  to 
become  a  British  province,  or  was  she  to  be  an  inde- 
pendent state  under  the  protection  of  Great  Britain  ? 
In  other  words,  in  case  of  a  war  between  the  United 
States  and  Great  Britain,  was  this  to  be  made  the 
common  fighting  ground,  and  the  inhabitants  exposed 
to  be  plundered  by  both  armies  ? 

I  had  proceeded  thus  far,  calculating  to  conclude 
the  subject  with  some  brief  remarks  —  believing  that, 
from  what  has  been  said,  it  would  be  admitted  by  all, 
that  there  is  not  the  least  foundation  for  the  charge  of 
criminality  against  the  leading  men  in  Vermont,  in 
their  secret  negotiation  with  the  British.  But  on  re- 
viewing the  subject,  I  am  satisfied  that  duty  requires 


LIFE    OF    NATHANIEL    CHIPMAN.  41 

a  further  examination  of  it.  Can  we  be  satisfied  ? 
Can  we  be  excused,  if  we  suffer  the  character  of  our 
patriot  fathers,  who  achieved  the  independence  of 
the  state,  and  who  acted  so  distinguished  a  part  in 
achieving  our  national  independence,  to  go  down  to 
posterity,  stained  with  the  most  unfounded  charges  of 
treason  against  their  country,  without  showing,  as  it 
is  in  our  power  to  do,  that  the  overt  acts  of  treason 
specified,  were  dictated  by  the  purest  patriotism,  and 
as  intended,  afforded  essential  aid  in  the  war  of  in- 
dependence ?  This  must  not  be,  but  their  acts  and 
intentions  must  be  truly  stated,  that  posterity  may 
have  a  full  knowledge  of  their  character.  I  feel  this 
duty  to  be  more  imperative,  because  this  charge, 
made  in  the  most  formal  manner,  with  a  detail  of  the 
evidence  in  support  of  it,  is  contained  in  that  interest- 
ing work,  "  The  Life  of  Joseph  Brant,"  a  work  which 
will  be  read  with  interest  by  future  generations.  The 
author  has  collected  and  detailed  all  the  evidence  on 
which  he  founds  his  charge,  and  on  which  he  pro- 
nounces sentence.  Now  to  me  this  evidence  appears 
not  only  insufficient  to  prove  the  charge,  but  wholly 
irrelevant.  Yet  I  have  good  reason  to  distrust  my 
own  judgment  in  relation  to  the  weight  of  this  evi- 
dence, as  I  have  a  personal  knowledge  of  the  facts  in 
the  case.  For  although  I  was  too  young  at  the  time 
of  this  secret  negotiation  to  be  an  actor  in  public 
affairs,  yet  I  lived  with  my  brother,  who  was  a 
principal  actor  in  all  public  transactions  at  that  day, 
and,  as  we  have  seen,  was  concerned  in  this  negotia- 
tion ;  and  from  him  I  had  at  the  time  a  knowledge  of 
it,  from  near  the  commencement  to  the  close,     liut 


I  J  LIFE    OF    NATHANIEL    CHJPMAN. 

never  did  I  hear  from  him,  or  any  one  of  the  lead- 
ing men,  an  intimation  that  they  thought  of  com- 
plying with  the  propositions  of  the  British.  But,  on 
the  contrary,  whenever  they  met,  this  secret  negotia- 
tion was  usually  a  subject  of  merriment  and  exulta- 
tion, that  the  British  were  so  completely,  and  so  long 
deceived,  to  their  own  injury,  and  our  advantage. 
As  I  have  said,  I  must  be  a  very  incompetent  judge 
of  the  weight  of  the  evidence  which  Mr.  Stone  has 
adduced,  to  prove  a  charge  which  I  knew  to  be  un- 
founded. Surely  then,  the  reader  will  think  it  quite 
reasonable,  that  I  submit  the  evidence  to  his  better 
judgment,  with  such  remarks  as  to  its  relevancy  and 
weight  as  shall  occur  to  me. 

To  do  this  fairly,  and  to  enable  the  reader  to  form 
a  satisfactory  opinion  in  the  case,  I  regret  that  it  is 
necessary  to  make  the  following  long  extract  from 
the  second  volume  of  the  "Life  of  Brant,"  p.  137. 

"  A  summary  view  of  the  controversy  between 
New  York  and  the  people  of  the  New  Hampshire 
Grants,  has  already  been  given  ;  in  addition  to  which, 
several  incidental  allusions  have  been  made  to  the 
equivocal  movements  and  intentions  of  Ethan  Allen. 
Reference  was  also  made,  by  way  of  a  note  in  the 
preceding  chapter,  to  a  special  message  from  Gov- 
ernor Clinton  to  the  legislature  of  New  York,  com- 
municating important  information  respecting  the  de- 
signs of  Allen  and  his  associates,  which  had  been 
derived  from  two  prisoners  who  had  escaped  from 
Canada  in  the  autumn  of  the  present  year  —  John 
Edgar  and  David  Abecl.  The  substance  of  the  state- 
ments of  these  men  was,  that  several  of  the  leading 


LIFE    OF    NATHANIEL    CHIPMAN.  43 

men  of  the  New  Hampshire  Grants  were  forming  an 
alliance  with  the  king's  officers  in  Canada.  Among 
these  leaders  were  Ethan  and  Ira  Allen,  and  the  two 
Fays.  A  man  named  Sherwood,  and  Doctor  Smith 
of  Albany,  whose  name  has  already  been  mentioned, 
were  the  agents  of  the  negotiation  on  the  part  of  Great 
Britain ;  and  their  consultations  were  sometimes  held 
at  Castleton,  on  the  Grants,  and  sometimes  in  Can- 
ada. According  to  the  statement  of  Edgar,  it  was 
understood  that  the  Grants  were  to  furnish  the  king 
with  a  force  of  two  thousand  men.  Mr.  AbeePs 
information  was,  that  fifteen  hundred  was  the  number 
of  men  to  be  furnished,  under  the  command  of  Ethan 
Allen.  Mr.  Abeel  also  stated,  that  Ethan  Allen  was 
then  in  Canada  upon  that  business,  and  that  he  had 
seen  Major  Fay  at  the  Isle  au  Noix,  on  board  of  one 
of  the  king's  vessels ;  and  that  he,  Fay,  had  exchanged 
upward  of  thirty  Hessians,  who  had  deserted  from 
Burgoyne's  army,  delivering  them  up  to  the  British 
authorities.  The  statements  of  Edgar  and  Abeel, 
the  latter  of  whom  had  been  taken  a  prisoner  at  Cats- 
kill  the  preceding  spring,  were  given  under  the 
sanction  of  an  oath ;  and,  although  they  were  not 
fellow-prisoners,  —  and  although  they  had  derived 
their  information  from  different  sources,  —  and  al- 
though escaping  at  different  times,  under  dissimilar 
circumstances,  and  by  routes  widely  apart,  —  yet 
there  was  a  strong  coincidence  between  them.  A 
third  account,  submitted  to  the  legislature  by  the 
governor,  was  somewhat  different,  and  more  particu- 
lar as  to  the  terms  of  the  proposed  arrangement. 
In  this  paper,  it  was  stated,  first,  that  the  territory 


44  LIFE    OF    NATHANIEL    CHIPMAN. 

claimed  by  the  \  crmontese  should  be  formed  into 
a  distinct  colony  or  government.  Secondly,  that  the 
form  of  government  should  be  similar  to  that  of 
Connecticut,  save  that  the  nomination  of  governor 
should  be  vested  in  the  crown.  Thirdly,  that  they 
should  be  allowed  to  remain  neutral,  unless  the  war 
should  be  carried  within  their  own  territory.  Fourth- 
ly, they  were  to  raise  two  battalions,  to  be  in  the  pay 
of  the  crown,  but  to  be  called  into  service  only  for 
the  defence  of  the  colony.  Fifthly,  they  were  to  be 
allowed  a  free  trade  with  Canada.  General  Haldi- 
mand  had  not  deemed  himself  at  liberty  to  decide 
definitely  upon  propositions  of  so  much  importance, 
and  had  accordingly  transmitted  them  to  England  for 
the  royal  consideration.  An  answer  was  then  ex- 
pected. Such  was  the  purport  of  the  intelligence ; 
and  such  was  the  weight  of  the  testimony,  that  the 
governor  did  not  hesitate  to  assert  that  they  "  proved 
a  treasonable  and  dangerous  intercourse  and  connec- 
tion between  the  leaders  of  the  revolt  in  the  north- 
eastern part  of  the  state  and  the  common  enemy." 

The  fact  is,  according  to  the  admissions,  and  the 
documents  published,  by  the  Vermont  historians  them- 
selves, that  the  people  of  Vermont,  though  doubtless 
for  the  most  part  attached  to  the  cause  of  the  country, 
nevertheless  looked  upon  New  York  "as  a  more 
detested  enemy  "  than  Great  Britain  ;  and  the  officers 
of  the  latter  were  not  slow  in  their  efforts  to  avail 
themselves  of  the  schism.  Accordingly,  Colonel 
Beverly  Robinson  sought  to  open  a  correspondence 
with  Ethan  Allen  as  early  as  March,  1780.  The  first 
letter  was  handed  to  Allen  in  Arlington,  but  was  not 


LIFE    OF    NATHANIEL    CHIPMAN.  45 

answered.  A  second  letter  from  Robinson  was  re- 
ceived by  Allen  in  February,  1781,  which,  with  the 
first,  he  enclosed  to  congress  in  March,  accompanied 
by  a  letter,  plainly  asserting  the  right  of  Vermont  to 
agree  to  a  cessation  of  hostilities  with  Great  Britain, 
provided  its  claims,  as  a  State,  were  still  to  be  rejected 
by  congress.  It  does  not  appear,  however,  that  the 
threat  had  any  effect  upon  that  body. 

"  In  the  months  of  April  and  May  following,  the 
governor  and  council  of  Vermont  commissioned 
Colonel  Ira  Allen,  a  brother  of  Ethan,  to  proceed 
to  the  Isle  au  Noix,  to  settle  a  cartel  with  the  British 
in  Canada,  and  also,  if  possible,  to  negotiate  an 
armistice  in  favor  of  Vermont.  The  arrangements 
for  this  negotiation  were  conducted  with  the  most 
profound  secrecy,  only  eight  persons  being  cognizant 
of  the  procedure.  Colonel  Allen,  accompanied  by 
one  subaltern,  two  sergeants,  and  sixteen  privates, 
departed  upon  his  mission  on  the  first  of  May,  and, 
having  arrived  at  the  Isle  au  Noix,  entered  at  once 
upon  his  business;  negotiating  with  Major  Dundas, 
the  commander  of  that  post,  only  on  the  subject  of 
an  exchange  of  prisoners,  but  more  privately  with 
Captain  Sherwood  and  George  Smith,  Esq.,  on  the 
subject  of  an  armistice.  The  stay  of  Allen  at  the 
island  was  protracted  for  a  considerable  time,  and  the 
conferences  with  the  two  commissioners,  Sherwood 
and  Smith,  on  the  subject  of  the  political  relations 
of  Vermont,  were  frequent,  but  perfectly  confidential ; 
Allen  carefully  avoiding  to  write  anything,  to  guard 
against  accidents.  But,  from  the  beginning,  it  seems 
to  have  been  perfectly  understood,  by  both  parties, 


46  LIFE    OF    NATHANIEL    CHIPMAN. 

that  they  were  treating  *  for  an  armistice,  and  to 
concert  measures  to  establish  Vermont  as  a  colony 
under  the  crown  of  Great  Britain.'  In  the  course 
of  the  consultations,  Allen  freely  declared  '  that  such 
was  the  extreme  hatred  of  Vermont  to  the  State  of 
New  York,  that,  rather  than  yield  to  it,  they  would 
see  congress  subjected  to  the  British  government, 
provided  Vermont  could  be  a  distinct  colony  under 
the  crown  on  safe  and  honorable  terms.'  He  added, 
'  that  the  people  of  Vermont  were  not  disposed  any 
longer  to  assist  in  establishing  a  government  in  Amer- 
ica, which  might  subject  them  and  their  posterity 
to  New  York,  whose  government  was  more  detested 
than  any  other  in  the  known  world.'  These  were 
encouraging  representations  in  the  ears  of  his  ma- 
jesty's officers ;  and,  after  a  negotiation  of  seventeen 
days,  the  cartel  was  arranged,  and  an  armistice  ver- 
bally agreed  upon,  by  virtue  of  which  hostilities  were 
to  cease  between  the  British  forces  and  the  people 
under  the  jurisdiction  of  Vermont,  until  after  the 
next  session  of  the  legislature  of  Vermont,  and  even 
longer,  if  prospects  were  satisfactory  to  the  com- 
mander-in-chief in  Canada.  Moreover,  as  Vermont 
had  then  extended  her  claims  of  territory  to  the 
Hudson  River,  all  that  portion  of  New  York  lying 
east  of  the  river,  and  north  of  the  western  termination 
of  the  north  line  of  Massachusetts,  was  included  in 
the  armistice.  It  was  also  stipulated,  that,  during 
the  armistice,  the  leaders  in  Vermont  were  to  pre- 
pare the  people  by  degrees  for  a  change  of  govern- 
ment, and  that  the  British  officers  were  to  have  free 
communication  through  the  territory  of  the  new 
State,  as  it  claimed  to  be. 


LIFE    OF    NATHANIEL    CHIP  MAN.  47 

"But,  notwithstanding  the  veil  of  secrecy  drawn 
over  the  proceedings,  dark  suspicions  got  afloat  that 
all  was  not  right.  The  sincere  whigs  among  the 
people  of  the  Grants  became  alarmed,  and  were 
apprehensive  that  they  might  be  sold  ere  yet  they 
were  aware  of  it.  When  the  legislature  met,  the 
people,  whose  jealousies  had  been  awakened,  flocked 
to  the  place  of  meeting,  to  ascertain  whether  all  was 
well ;  and  it  was  only  by  much  dissimulation  on  the 
part  of  those  who  were  in  the  secret,  that  the  friends 
of  the  Union  were  pacified.  There  were  also  other 
spectators  present,  from  different  States,  who  felt  an 
equal  interest  to  ascertain  whether  the  great  cause 
of  the  nation  was  not  in  danger  of  being  compro- 
mised. The  result  was,  that  the  agents  succeeded  in 
throwing  dust  into  the  eyes  of  the  people ;  and  so 
adroit  was  their  management,  that  the  Aliens  held 
communication  with  the  enemy  during  the  whole 
summer,  without  detection.  On  more  than  one  oc- 
casion, British  guards,  of  several  men,  came  to  the 
very  precincts  of  Arlington,  delivering  and  receiving 
packages  in  the  twilight. 

"  In  September  the  negotiations  were  renewed,  the 
commissioners  of  both  parties  meeting  secretly  at 
Skenesborough,  within  the  territory  of  New  York, 
and  further  progress  was  made  in  the  terms  of  the 
arrangement,  by  which  Vermont  was  in  due  time  to 
throw  herself  '  into  the  arms  of  her  legitimate  sover- 
eign.' Sir  Frederick  Haldimand,  however,  was  be- 
coming impatient  of  longer  delay ;  and  a  strenuous 
effort  was  made  for  an  immediate  and  open  declara- 
tion on  the  part  of  Vermont.     To  this  proposition 


48  LIFE    OF    NATHANIEL    CHIP  MAN. 

the  Vermont  commissioners,  Ira  Allen,  Joseph  Fay, 
and  a  third  person,  whose  name  is  not  given,  pleaded 
that  there  had  not  yet  been  time  to  prepare  the 
people  for  so  great  a  change,  and  that  they  should 
require  the  repose  of  the  approaching  winter  for  that 
object.  It  was  at  length  stipulated,  however,  that, 
inasmuch  as  the  royal  authority  had  been  received 
by  Sir  Frederic  Haldimand  for  that  purpose,  an  army 
might  ascend  the  lake,  with  proclamations  offering  to 
confirm  Vermont  as  a  colony  under  the  crown,  upon 
the  principles  and  conditions  heretofore  indicated,  on 
the  return  of  the  people  to  their  allegiance ;  the 
commissioners  interposing  a  request,  that  the  general 
commanding  the  expedition  would  endeavor  to  ascer- 
tain the  temper  of  the  people  before  the  proclamation 
should  be  actually  distributed.  The  legislature  of  the 
Grants  assembled  at  Charlestown  in  October.  Mean- 
time, General  St.  Leger,  agreeably  to  the  arrange- 
ment with  Allen  and  Fay,  ascended  the  lake  to 
Ticonderoga,  with  a  strong  force,  where  he  rested. 
In  order  to  save  appearances,  the  Vermontese  had 
stationed  a  military  force  on  the  opposite  shore,  under 
the  command  of  General  Enos,  to  whom  was  neces- 
sarily confided  the  secret.  But  on  neither  side  would 
it  answer  to  confide  the  secret  to  the  subordinates. 
They  must,  of  course,  regard  each  other  as  enemies 
in  good  faith ;  and  the  fact  that  they  did  so  consider 
themselves  was  productive  of  an  affair,  which  placed 
the  Vermontese  in  a  peculiarly  awkward  predicament. 
The  circumstances  were  these:  In  order  to  preserve 
at  least  the  mimicry  of  war,  scouts  and  patrols  were 
occasionally   sent  out   by  both   parties.      Unluckily, 


LIFE    OF    NATHANIEL    CHIPMAN.  49 

one  of  these  Vermont  patrols  happened  one  day  to 
encounter  a  similar  party  from  the  army  of  St.  Leger. 
Shots  were  exchanged  with  hearty  good  will ;  the 
Vermont  sergeant  fell,  and  his  men  retreated.  The 
body  was  decently  interred  by  order  of  General 
St.  Leger,  who  sent  his  clothes  to  General  Enos, 
accompanied  by  an  open  letter,  apologizing  for  the 
occurrence,  and  expressing  his  regret  at  the  result. 
It  was  hardly  probable  that  an  unsealed  letter  would 
pass  through  many  hands,  and  its  contents  remain 
unknown  to  all  save  the  person  to  whom  it  was 
addressed.  Such,  certainly,  was  not  the  fact  in 
regard  to  the  letter  in  question.  Its  contents  trans- 
pired ;  and  great  was  the  surprise  at  the  civility  of 
General  St.  Leger,  in  sending  back  the  sergeant's 
clothes,  and  deploring  his  death.  A  messenger  was 
despatched  by  General  Enos  to  Governor  Chittenden 
at  Charlestown,  who,  not  being  in  the  secrets  of  his 
employers,  failed  not,  with  honest  simplicity,  to  pro- 
claim the  circumstances  of  the  sergeant's  death,  and  the 
extraordinary  message  of  General  St.  Leger.  The  con- 
sequence was  excitement  among  the  people  assembled 
at  Charlestown,  attended  with  a  kindling  feeling  of 
distrust.  '  Why  should  General  St.  Leger  send  back 
the  clothes  ? '  '  why  regret  the  death  of  an  enemy  ? ' 
were  questions  more  easily  asked  by  the  people  than 
capable  of  being  safely  and  ingenuously  answered 
by  their  leaders.  The  consequence  was,  a  popular 
clamor  unpleasant  to  the  ears  of  the  initiated.  Major 
Runnels  confronted  Colonel  Ira  Allen,  and  demanded 
to  know  why  St.  Leger  was  sorry  for  the  death  of 
the  sergeant.      Allen's  answer  was  evasive  and  un- 


50  LIFE    OF    NATHANIEL    CHIPMAN. 

satisfactory.  The  major  repeated  the  question,  and 
Allen  replied  that  he  had  better  go  to  St.  Leger  at 
the  head  of  his  regiment,  and  demand  the  reason  for 
his  sorrow  in  person.  A  sharp  altercation  ensued, 
which  had  the  effect,  for  a  short  time,  of  diverting 
the  attention  of  the  people  from  the  despatches, 
which  they  had  been  clamoring  to  have  read.  These 
were  precious  moments  for  the  governor  and  the 
negotiators  with  the  enemy.  The  board  of  war 
was  convened,  the  members  of  which  were  all  in 
the  secret,  and  a  set  of  pretended  letters  were  hastily 
prepared,  from  such  portions  of  General  Enos's 
despatches  as  would  serve  the  purpose  in  hand, 
which  were  read  publicly  to  the  legislature  and  the 
people,  and  which  had  the  effect  of  allaying  the  ex- 
citement and  hushing  suspicion  into  silence. 

"  Meantime,  a  rumor  of  the  capture  of  Cornwallis 
and  his  army  at  Yorktown  was  wafted  along  upon 
the  southern  breeze ;  the  effect  of  which  was  such 
upon  the  people,  as  to  induce  Allen  and  Fay  to  write 
to  the  British  commissioners  with  St.  Leger,  that  it 
would  be  imprudent,  at  that  particular  conjuncture, 
for  him  to  promulgate  the  royal  proclamation,  and 
urging  delay  to  a  more  auspicious  moment.  The 
messenger  with  these  despatches  had  not  been  longer 
than  an  hour  at  the  head-quarters  of  St.  Leger  at 
Ticondcroga,  before  the  rumor  respecting  Cornwallis 
was  confirmed  by  an  express.  The  effect  was  pro- 
digious. All  ideas  of  further  operations  in  thai 
quarter  were  instantly  abandoned;  and,  before  eve- 
ning  of  the  same  day,  St.  Leger's  troops  and  stores 
were  re-embarked,  and,  with  ;i  fair  wind,  he  made 
sail  immediately  back  to  St.  Johns. 


LIFE    OF    NATHANIEL    CHIPMAN.  51 

"  From  this  narrative  of  facts,  as  disclosed  in  Lon- 
don, many  years  afterward,  by  Colonel  Ira  Allen 
himself,  it  will  be  seen  at  once  that  General  Heath 
was  in  error,  when,  in  his  general  orders  of  Novem- 
ber 9th,  he  attributed  the  inaction  of  General  St. 
Leger,  and  his  ultimate  retreat,  to  the  preparations 
of  Lord  Stirling  and  Generals  Stark  and  Gansevoort 
for  his  reception. 

"  The  digression  which  has  been  judged  necessary, 
to  elucidate  this  portion  of  the  operations  in  the 
north  during  the  summer  and  autumn  of  1781,  may 
by  some  readers  be  thought  wide  of  the  leading 
design  of  the  present  work.  Still,  it  is  believed  that, 
to  a  majority  of  the  public,  the  facts  detailed  in  this 
connection  will  be  new,  as  they  must  be  curious  in 
the  estimation  of  all.  They  are,  at  the  same  time, 
held  to  be  essential  to  a  just  appreciation  of  the  diffi- 
culties with  which  the  military  officers  in  the  northern 
department,  and  the  government  of  the  State  of  New 
York,  were  obliged  to  contend  during  the  period 
under  consideration.  Strong  light  is  also  reflected 
by  them  upon  that  portion  of  the  history  of  the  war 
itself  with  which  they  are  interblended.  Every  close 
reader  of  American  history  is  aware  that  there  was 
a  correspondence,  of  some  description,  between  the 
leaders  of  the  people  occupying  the  New  Hampshire 
Grants  and  the  common  enemy,  during  the  later 
years  of  the  revolutionary  war.  But  neither  the 
precise  character,  nor  the  extent,  of  that  correspond- 
ence, has  been  generally  understood ;  while  it  has, 
for  obvious  reasons,  been  the  desire  of  those  most 
directly  concerned  in  those  matters,  to  represent  the 


52  LIFE    OF    NATHANIEL    CHIPMAN. 

whole  as  a  game  of  dissembling  with  an  enemy  who 
had  attempted  to  tamper  with  the  patriotic  sons  of 
the  Green  Mountains.1  Be  this  as  it  may,  it  is  in 
the  secret  proceedings  of  the  Vermont  conspirators, 
that  the  key  is  found  to  the  mysterious  movements 
of  the  enemy  on  Lake  Champlain,  which  had  so 
greatly  harassed  the  American  commanders  at  the 
north  during  that  autumn." 

We  will  take  the  author's  statement  of  the  question 
which  he  has  decided,  and  which  we  propose  to 
examine.  Were  Governor  Chittenden  and  the  lead- 
ing men  of  Vermont,  in  their  secret  negotiations 
with  the  British,  playing  a  game  of  dissembling  with 
an  enemy  who  had  attempted  to  tamper  with  the 
patriotic  sons  of  the  Green  Mountains,  or  had  those 
leading  men  a  serious  intention  to  listen  to  the 
proposals  of  the  British  ?  The  author  has  decided 
this  question  against  the  leading  men  of  Vermont,  — 
that  they  had  a  serious  intention  to  listen  to  the  pro- 
posals of  the  British.  As  this  decision  is  a  reversal 
of  the  decision  made  by  Sparks  and  others,  it  must 

1  "  Sparks,  adopting  the  views  of  earlier  writers,  has  noticed  the  case  in 
this  favorable  aspect,  in  his  late  sketch  of  the  life  of  Ethan  Allen.  The 
author  certainly  agrees  with  Mr.  Sparks  in  the  opinion  that  '  there  was 
never  any  serious  intention,  on  the  part  of  the  Vermontese,  to  listen  to 
the  British  proposals.'  But,  with  great  deference,  after  a  full  examina- 
tion of  the  case,  the  same  cannot  he  said  of  t lie  leaders  of  the  Ver- 
montese. They  had  determined  that  New  York  should  he  dismembered; 
and,  if  tiny  could  nut  force  themselves  into  the  confederation  as  a  state, 
1 1 1 1 ■  v  were  willing  in  fall  back  into  the  arms  of  Great  Britain  as  a  colony. 
But  it  is  very  certain,  from  the  conduct  of  the  people  of  the  Grants  when 
thi'y  heard  of  St.  Lcger's  regrets  at  the  killing  of  the  sergeant,  that  they 
were  prepared  for  no  such  arrangement." 


LIFE    OF    NATHANIEL    CHIPMAN.  53 

be  taken  that  Mr.  Stone  has  stated  all  the  evidence 
on  which  he  founded  his  opinion  ;  and  it  seems  that 
he  considered  most  of  it  as  new-discovered  evidence, 
unknown  to  those  who  had  formed  a  different  opinion 
in  the  case.  Such,  I  understand,  is  the  evidence  of 
Edgar  and  Abeel,  on  which  great  reliance  seems  to 
be  placed.  A  statement  of  facts  is  made  to  establish 
their  credibility,  or  rather  to  remove  all  suspicion 
that  they  might  have  been  connected  together,  and 
fabricated  their  testimony.  Now,  had  their  evidence 
the  least  bearing  on  the  point  in  question,  I  should 
not  hesitate  to  say  that  it  is  deserving  of  no  credit 
whatever.  Where,  and  how,  were  the  thirty  Hessian 
deserters  from  Burgoyne's  army  caught  by  Major 
Fay,  to  be  delivered  up  to  the  British  authorities? 
Great  numbers  of  the  German  soldiers,  principally 
young  men,  who  took  a  fancy  to  this  country,  and 
determined  not  to  return  to  their  father-land,  deserted 
from  Burgoyne's  army  after  the  capture,  and  settled 
in  all  parts  of  New  England.  But  how,  and  by 
whom,  was  Major  Fay  authorized  to  seize  these 
peaceable  citizens,  for  such  they  were,  and  deliver 
them  up  to  the  British  authorities?  And,  surely, 
it  was  not  by  their  own  consent  that  they  were  deliv- 
ered up  for  punishment.  This  part  of  the  testimony 
of  these  witnesses,  then,  is  a  sheer  fabrication,  and 
discredits  their  whole  testimony.  But,  as  before 
hinted,  it  is  wholly  unnecessary  to  impeach  these 
witnesses,  for  the  obvious  reason  that,  if  true,  their 
testimony  has  no  bearing  on  the  point  in  question. 
It  only  proves  what  was  known  to  all,  and  admitted 
by  all,  that  the  leading  men  in  Vermont  entered  into 

7 


54  LIFE    OF    NATHANIEL    C'HIPMAN. 

a  secret  negotiation  with  the  British  authorities  in 
Canada,  and  nothing  more ;  having  no  tendency  to 
prove  with  what  design  they  entered  into  that  nego- 
tiation. 

The  next  evidence,  is  a  more  particular  account  of 
the  negotiation  communicated  to  the  legislature  of 
New  York  by  Governor  Clinton,  if,  indeed,  it  can  be 
considered  as  evidence,  it  being  only  the  declaration 
of  Governor  Clinton,  that  such  was  the  purport  of 
the  intelligence  which  he  had  received,  and  such  was 
the  weight  of  the  testimony,  referring,  of  course,  to 
the  testimony  of  Edgar  and  Abeel,  that  he  did  not  hes- 
itate to  assert  that  they  proved  a  treasonable  and  dan- 
gerous intercourse  and  connection  between  the  lead- 
ers of  the  revolt,  in  the  north-eastern  part  of  the 
state,  and  the  common  enemy.  It  is  obvious  that 
this  adds  nothing  to  the  testimony  of  Edgar  and  Abeel, 
except  the  opinion  of  Governor  Clinton.  And  this 
without  the  slightest  imputation  upon  the  governor, 
we  may  say,  is  deserving  of  no  weight.  Extremely 
jealous  as  he  Avas  of  the  people  of  Vermont,  informa- 
tion of  a  secret  negotiation  between  them  and  the 
common  enemy,  would,  to  his  mind,  be  the  clearest 
evidence  of  treason.  Indeed,  every  one  whose  mind 
was  unbiased,  being  informed  only  of  the  existence 
of  the  secret  negotiation,  would  have  formed  the  same 
opinion. 

The  author  then  states  the  fact,  that  the  people  of 
Vermont,  although  doubtless  for  the  most  part  attach- 
ed to  the  cause  of  their  country,  nevertheless  looked 
upon  New  York  as  a  more  detested  enemy  than 
( treat  Britain  ;  a  statement  not  exactly  in  accordance 


LIFE    OF    NATHANIEL    CHIPMAN.  55 

with  the  final  decision  of  the  author.  The  next  evi- 
dence is,  that  in  the  month  of  March,  1780,  Ethan 
Allen  received  a  letter  from  Beverly  Robinson,  a 
British  officer,  of  which  letter  it  does  not  appear  that 
any  notice  was  taken.  But  on  the  receipt  of  a  second 
letter  from  Robinson  in  February,  1781,  Allen  trans- 
mitted both  letters  to  congress,  accompanied  by  a 
letter  from  himself,  in  which  he  asserted  the  right  in 
Vermont  to  agree  to  a  cessation  of  hostilities  with 
Great  Britain,  provided  its  claims  as  a  state  were  still 
to  be  rejected  by  congress.  It  does  not  appear,  says 
the  author,  that  the  threat  had  any  effect  upon  that 
body.  And  why  ?  Because  congress  knew  that  trai- 
tors never  truly  disclose  their  designs  to  those  whom 
they  are  betraying.  The  next  evidence  is  a  more  de- 
tailed account  of  the  negotiation  at  the  Isle  au  Noix. 
The  author  says,  that  in  the  course  of  the  consulta- 
tion, Ira  Allen  freely  declared,  that  such  was  the  ex- 
treme hatred  of  Vermont  to  the  state  of  New  York, 
that  rather  than  yield  to  it,  they  would  see  congress 
subjected  to  the  British  government,  provided  Ver- 
mont could  be  a  distinct  colony  under  the  crown,  on 
safe  and  honorable  terms.  He  added,  that  the  peo- 
ple of  Vermont  were  not  disposed  any  longer  to  assist 
in  establishing  a  government  in  America,  which  might 
subject  them  and  their  posterity  to  New  York,  whose 
government  was  the  most  detested  in  the  known  world. 
These,  it  is  said,  were  encouraging  representations  in 
the  ears  of  his  majesty's  officers.  They  were  so,  be- 
cause Allen  forgot  to  relate  the  concluding  part  of 
the  story  —  that  nothing  on  earth  could  ever  induce 
the  people  of  Vermont  to  submit  either  to  the  govern- 


56  LIFE    OF    NATHANIEL     CHIPMAN. 

ment  of  New  York  or  to  the  government  of  Great 
Britain.  After  a  negotiation  of  seventeen  days,  an 
armistice  was  verbally  agreed  upon,  by  virtue  of 
which,  hostilities  were  to  cease  between  the  British 
forces  and  the  people  of  Vermont  until  after  the  next 
session  of  their  legislature. 

It  is  unnecessary  to  examine  the  evidence  contain- 
ed in  the  extract  any  farther  in  detail ;  but  the  reader 
is  requested  to  examine  it,  and  if  he  can  find  any 
fact  proved,  or  even  stated,  inconsistent  with  the  alle- 
gation that  the  leading  men  in  Vermont  were  only 
playing  a  game  of  dissembling  with  the  enemy,  hav- 
ing no  intention  of  listening  to  their  proposals,  let  it 
be  noted,  and  have  its  due  weight.  It  is  presumed, 
however,  that  he  will  find  nothing  of  the  kind,  and 
that  he  will  take  this  general  view  of  the  subject. 
The  British  authorities  in  the  province  of  Canada, 
knowing  that  for  a  number  of  years  a  bitter  conten- 
tion had  existed  between  the  people  of  Vermont  and 
the  government  of  New  York,  and  knowing,  also,  as 
they  undoubtedly  did  know,  that  congress  had  passed 
a  resolution,  declaring  that  the  independent  govern- 
ment, attempted  to  be  established  in  Vermont,  could 
derive  no  countenance  or  support  from  any  act  or 
resolution  of  congress ;  and  being  deceived,  as  the 
British  were,  through  the  whole  of  the  revolutionary 
war,  in  relation  to  the  number  of  loyalists  in  the 
States,  and  having  no  adequate  knowledge  of  their 
rebellious  subjects,  they  naturally  compared  them  to 
a  British  mob ;  an  ignorant,  unstable,  changeable 
multitude,  who  might  be  easily  induced  to  return  to 
their  allegiance  under  the  crown ;  and  they  had  no 


LIFE    OF    NATHANIEL    CHIPMAN.  57 

doubt  but  that  the  people  of  Vermont  might  be 
induced  to  separate  themselves  from  the  United 
States,  and  become  a  British  colony.  Entertaining 
these  views,  the  two  letters  were  written  by  Robinson 
to  Allen,  proposing  an  armistice.  Governor  Chit- 
tenden, and  other  leading  men  in  Vermont,  being 
consulted,  it  was  concluded  that  something  might  be 
made  out  of  these  letters  by  transmitting  them  to 
congress,  at  the  same  time  asserting  the  right  of 
Vermont  to  agree  to  a  cessation  of  hostilities  with 
Great  Britain,  calculating  that  congress  might  be 
induced  to  delay  a  decision  in  favor  of  New  York, 
lest  they  might  drive  Vermont  to  form  a  connection 
with  the  British,  especially  as  congress  had  been 
divided  on  all  questions  relating  to  Vermont.  And 
who  will  say  that  their  calculations  wholly  failed  as 
to  the  effect  of  their  proceedings  upon  congress? 
Without  adverting  to  these  proceedings,  who  will  un- 
dertake to  account  for  the  singular,  vascillating  policy 
of  congress  in  relation  to  Vermont  during  the  whole 
of  the  revolutionary  war.  The  leading  men  in  Ver- 
mont had  a  still  stronger  inducement  to  agree  with 
the  British  on  an  armistice.  Our  frontiers  were  ex- 
posed to  the  enemy,  who  then  had  in  the  province  of 
Canada  a  disposable  force  of  seven  thousand  men. 
But  an  armistice  is  agreed  on  by  belligerents,  with  a 
view  to  ulterior  arrangements.  To  induce  the  Brit- 
ish, then,  to  agree  upon  an  armistice,  it  was  neces- 
sary on  the  part  of  Vermont  to  make  such  proposi- 
tions to  them  as  they  should  think  would  be  advan- 
tageous to  themselves,  and  such  as  might  appear  to 
be  made  with  sincerity  on  the  part  of  Vermont.    And 


58  LIFE    OF    NATHANIEL    CHIPMAN. 

what  propositions  could  be  made  more  advantageous 
to  the  British,  or  more  natural  on  the  part  of  Ver- 
mont, than  the  proposition  that  Vermont  should  de- 
tach herself  from  the  L'nited  States  and  become  a 
British  province.  Accordingly  this  proposition  was 
made  and  an  armistice  agreed  on.  How  natural, 
then,  was  the  declaration  of  Ira  Allen,  during  his  ne- 
gotiation with  the  British  at  the  Isle  au  Noix.  The 
author  says,  that  AMen  freely  declared,  &c. ;  the  word 
freely  is  evidently  used  to  give  to  the  transaction  a 
darker  shade  ;  but  he  might  have  given  the  transac- 
tion a  much  darker  shade,  in  his  own  view,  had  he 
said  that  Allen  declared  in  the  most  positive  manner, 
and  it  would  also  have  been  more  correct.  For 
Allen's  object  was  to  impress  on  the  minds  of  the 
British  negotiators  the  strongest  conviction  that  the 
leading  men  in  Vermont  had  fully  determined  to  de- 
tach themselves  from  the  United  States,  and  join  the 
British  in  the  war  of  the  revolution.  And  Allen  was 
not  a  man  to  fail  for  want  of  a  sufficient  degree  of 
assurance.  These  observations  apply  to  all  the  de- 
clarations and  transactions  related  in  the  extract; 
and,  on  the  ground  that  it  was  all  a  game  of  dissem- 
bling to  deceive  the  British,  never  was  a  more  natu- 
ral, artful  and  politic  course  pursued.  But  they  met 
with  the  greatest  difficulty  in  furnishing  a  satisfactory 
excuse  to  the  British  for  their  delay  in  bringing  the 
business  to  a  final  conclusion.  And  this  was  indispen- 
sable ;  for  the  moment  they  were  brought  to  this  point, 
there  must  have  been  an  end  of  the  armistice.  And 
the  only  excuse  for  delay  which  presented  itself,  was, 
that  the  people  of  Vermont  were  not  prepared ;  that 


LIFE    OF    NATHANIEL    CHIPMAN.  59 

time  was  required  to  bring  them  over  to  their  views. 
A  great  length  of  time  must  have  been  required  for 
this,  for  nothing  can  be  more  clear,  than  that  the 
leading  men  in  Vermont  never  made  a  single  effort, 
even  to  abate  the  ardor  of  the  people  in  the  cause  of 
their  country.  Nothing  of  the  kind  was  suspected  at 
the  time  ;  no  writer  since,  has  noticed  the  subject  at 
all,  nor  has  Mr.  Stone  himself  even  stated  anything 
of  the  kind.  On  the  contrary,  it  appears  by  his  note 
at  the  close  of  the  extract,  that  he  considered  that  the 
body  of  the  people  of  Vermont  remained  uncorrupt- 
ed  and  steadfast  in  the  cause  of  their  country  to  the 
last.  We  have  seen  how  sensitive  the  people  were 
on  the  subject  of  a  negotiation  with  the  governor  of 
Canada,  and  this  as  late  as  October,  1781.  Certain 
it  is,  then,  that  if  any  efforts  had  been  made  to  abate 
their  ardor  in  the  cause  of  their  country,  they  had 
been  singularly  unsuccessful.  But  all  who  knew  Gov- 
ernor Chittenden,  knew  that  he  never  could  have 
made  an  effort  of  the  kind.  True,  he  had  a  com- 
manding influence  with  the  people,  but  he  had  ac- 
quired that  influence  by  his  zeal  in  the  cause  of  his 
country,  and  his  unremitted  exertions  to  establish  the 
independence  of  the  United  States.  And  all  have 
admitted  that  he  was  a  man  of  great  sagacity,  and 
distinguished  for  his  profound  knowledge  of  human 
nature.  And  surely  he  had  some  knowledge  of  his 
own  Green  Mountain  Boys.  He  knew  well  of  what 
stuff  they  were  made.  Could  he  then  ever  have 
thought  of  making  tories  out  of  such  materials  ?  No. 
He  never  thought  of  making  an  effort  of  the  kind. 
And  it  is  believed,  that  in  the  year  1781,  there  was 


60  LIFE    OF   NATHANIEL    CHIPMAN. 

scarcely  a  tory  within  the  limits  of  Vermont.  What 
tories  there  were  in  this  territory  at  the  commence- 
ment of  the  war  of  independence,  separated  them- 
selves from  the  whigs  in  the  year  1777,  and  joined 
the  enemy,  when  they  were  in  possession  of  a  part  of 
this  state.  I  have  dwelt  longer  on  this  part  of  the 
subject,  because  the  reader  will  perceive  that  if  I  am 
correct  in  this,  that  the  leading  men  of  Vermont  never 
made  any  effort  to  induce  the  people  to  abandon  the 
cause  of  their  country  and  join  the  British  —  the  ques- 
tion which  we  have  been  discussing  is  conclusively 
and  finally  settled.  For  these  leading  men  well  knew 
that  if,  by  their  secret  negotiations,  they  made  Ver- 
mont a  British  province,  without  the  concurrence  of 
the  people,  they  would  negotiate  themselves  into  per- 
petual exile  —  if  fortunate  enough  to  escape  a  more 
summary  punishment. 

Before  coming  to  a  conclusion,  I  cannot  but  state 
one  fact  which  strikingly  marks  the  character  of  our 
fathers. 

It  appears  very  clearly,  that  through  the  whole  of 
their  negotiation  with  the  British,  they  made  not  a 
single  profession  of  loyalty  to  the  British  crown,  or  of 
attachment  to  the  British  government,  or  uttered  an 
expression  of  dislike  to  our  free  institutions.  Such 
was  the  strength  of  their  moral  principles,  and  so 
fixed  their  habit  of  adhering  to  the  truth,  that  they 
could  not  at  once  learn  how  to  utter  a  palpable  false- 
hood. On  a  full  and  impartial  view  of  the  whole 
subject,  it  appears  that  the  reader  will  arrive  at  the 
following  conclusions:  That  the  British  authorities 
in  Canada  proposed  to  the  leading  men  in  Vermont 


LIFE    OF    NATHANIEL    CH1PMAN.  61 

a  cessation  of  hostilities  between  the  British  forces 
and  the  people  of  Vermont,  with  a  view  to  a  negotia- 
tion by  which  Vermont  should  be  detached  from  the 
United  States,  and  become  a  British  province.     The 
leading  men  in  Vermont  being  thus  invited  by  the 
British  to  desert  their  country  and  join  their  enemies, 
felt  themselves  at  liberty  to  accept  of  the  proposals 
of  the  British  for  an  armistice,  and  by  means  of  de- 
ception to  continue  it  so  long  as  they  should  find  it 
advantageous ;  that  they  played  their  game  so  adroitly, 
and  deceived  the  British  so  completely,  that  they  were 
enabled  to  continue  the  armistice  by  which  our  fron- 
tiers were  secured  against  the  assaults  of  the  enemy, 
until  the  close  of  the  war,  to  the  great  advantage  of 
the   United  States  as  well  as  this  state.     Thus,  the 
British,  undertaking  to  tamper  with  the  patriotic  sons 
of  the  Green  Mountains,  found  their  match,  and  were 
so  completely  duped  and  deceived,  that  their  enemies 
alone  were  benefited  by  the  armistice.     The  actors 
on  the  part  of  Vermont  will  ever  be  admired  and  ap- 
plauded for  their  wisdom  and  patriotism.     And  the 
character  of  Thomas  Chittenden,  Nathaniel    Chip- 
man  and  their  compatriots,  will  pass  down  through 
succeeding  ages,  to  the  last  generations  of  men,  as 
fair  and  untarnished  as  they  were  during  their  lives, 
and,  as  I  trust,  they  appeared  when  called  to  give 
an  account  to  that  Being  who  had  been  graciously 
pleased  to  crown  with  complete  success  all  their  no- 
ble and  patriotic  exertions  in  the  cause  of  their  coun- 
try—  the  cause  of  liberty  and  the  rights  of  man.1 

1  The  reader  will  find  some  further  evidence  upon  the  suhject  discussed 
in  this  chapter,  in  a  letter  from  Governor  Chittenden  to  General  Wash- 
ington, in  the  Appendix,  No.  VII. 


CHAPTER  III. 

Occasion  and  beneficial  Operation  of  the  Quieting  Act  —  Mr.  Cliipman 
unsuccessful  in  his  Farming  and  other  business  —  Resolution  of  the 
Legislature,  by  which  certain  Measures  proposed  for  the  Relief  of  the 
People  calculated  only  to  increase  and  prolong  their  Sufferings,  were 
postponed  and  defeated  —  Elected  Assistant  Judge  of  the  Supreme 
Court. 

When  the  government  was  organized  in  this  state, 
and  justice  began  to  be  administered,  it  was  soon 
found  that  a  great  portion  of  the  settlers  had  pur- 
chased defective  titles.  A  long  time  had  elapsed  be- 
tween the  granting  of  the  lands  by  New  Hampshire 
and  the  organization  of  government  in  this  state, 
during  the  whole  of  which  time  there  was  no  office  in 
which  deeds  could  be  recorded ;  and  there  was  no 
place  to  which  the  purchaser  could  resort  to  ascer- 
tain in  whom  was  the  legal  title  to  the  lands,  which 
he  proposed  to  purchase.  And  in  New  England,  pur- 
chasers were  not  accustomed  to  receive  the  title 
deeds,  so  as  to  have  in  their  hands  evidence  of  the 
title.  Consequently  it  was  soon  found,  that  a  man  so 
disposed,  could  sell  lands  as  well  without  the  expense 
of  a  purchase  as  with.  A  number  of  swindlers  took 
advantage  of  this  state  of  things,  and  made  a  business 
of  selling  lands  without  making  a  single  purchase. 
Simeon   Scars  was  one  of  these  primitive  swindlers. 


LIFE    OF   NATHANIEL    CHIPMAN.  63 

The  following  anecdote  will  show  how  notorious  this 
mode  of  swindling  had  become.  The  City  Hall  in 
Albany  was  but  thirty  miles  from  Bennington,  and 
some  of  the  people  of  Bennington  had  been  confined 
in  it  by  the  authorities  of  New  York.  The  City  Hall, 
of  course,  became  a  hated  place,  and  an  object  of 
dread  to  the  Green  Mountain  Boys,  the  more  so  after 
the  act  of  outlawry  against  Allen  and  others.  It  there- 
fore became  a  subject  of  conversation  at  all  their 
meetings.  At  length  they  began  to  devise  ways  and 
means  for  destroying  it.  And  at  one  of  the  meetings 
a  number  of  modes  of  effecting  this  were  proposed, 
and  among  the  rest  several  modes  of  blowing  it  up. 
"  No,"  said  Ethan  Allen,  wishing  to  direct  their  atten- 
tion from  that  dreaded  object,  "  the  better  way  will 
be  to  employ  Sim  Sears  to  sell  the  d — d  thing." 

A  great  portion  of  the  people  being  thus  exposed 
to  eviction  by  those  who  had  the  legal  title,  it  could 
not  be  supposed  that  they  would  support  a  govern- 
ment, by  the  operation  of  which  they  were  to  lose 
their  farms,  rendered  more  dear  to  them  by  their  long 
and  doubtful  struggle  with  New  York  in  their  defence, 
and  by  the  hardships  and  privations  which  they  had 
suffered  in  bringing  them  into  a  state  of  cultivation  ; 
and  it  was  absolutely  necessary  that  some  relief  should 
be  provided  for  them.  Governor  Chittenden  very 
early  discovered  this,  and  he  was  precisely  the  man 
to  devise  the  best  mode  of  relief.  He  had  a  strong 
sense  of  equity,  and  deeply  sympathized  with  the  un- 
fortunate settlers.  And  what  peculiarly  fitted  him  for 
this  occasion  was,  that  he  knew  nothing  of  the  tech- 
nical niceties  of  the  law.    He  therefore  found  nothing 

IT1 


G4  i  11  t.  or   n  mii  wir.i.  <  iiii*m  vn. 

in  the  way,  nothing  to  prevent  him  from  pursuing 
that  course  which  was  dictated  by  the  principles  of 
natural  justice.     And  as  the  settlers  had  made  im- 
provements on  their  farms  at  great  expense,  thereby 
greatly  enhancing  the  value,  he  could  not  endure  the 
gross  injustice  of  permitting  the  legal  owner,  who  had 
stood  aloof,  to  recover  the  land  with  the  value  thus 
enhanced  by  the  hard  labor  of  the  settlers.    He  there- 
fore proposed  a  law,  giving  to  the  settlers,  in  case  of 
eviction,  the  full  value  of  his  improvements  and  half 
the  rise  of  the  land.     A  bill  to  this  effect  had  been 
introduced  several  sessions  before,  but  being  opposed 
by  almost  all  the  lawyers  in  the  state,  it  was  post- 
poned to  the  October   session  of  the  legislature  at 
Rutland,  in  1784.     The  law,  they  said,  makes  every 
man  a  trespasser  who  enters  on  the  land  of  another 
without  license,  and  subjects  him  to  damages  for  the 
trespass ;  instead  of  this,  you  would  compel  the  legal 
owner  to  pay  him  a  bounty  for  his  trespass.    The  bill 
was  taken  up  again  at  this  session,  when  Nathaniel 
Chipman  was  a  member.     But  although  there  was  a 
majority  in  favor  of  the  principles  of  the  bill,  giving 
to  the  settler  a  remedy  for  his  "  betterments  "  against 
the  legal  owner,  on  a  recovery  in  ejectment,  yet  they 
were  not  able  to  agree  on  the  details  of  the  bill.     No 
wonder ;  for  it  was  a  new  case.     They  could  avail 
themselves  of  no  precedent ;   they  could  resort  to  no 
form.     Not  being  able  to  pass  the  bill  at  this  session, 
and  feeling  a  pressing  necessity  of  passing  it  as  soon 
as  possible,  the  legislature  had  an  adjourned  session 
at   Norwich,   in   June,    ITT)"),  that  they  might  have 
time  to  mature  and  pass  the  bill,  afterwards  called  the 


LIFE    OF    NATHANIEL    CHIPMAN.  65 

quieting  act.  The  bill  was  taken  up  at  the  adjourned 
session  and  referred  to  a  committee,  of  which  Nathan- 
iel Chipman  was  a  member.  When  the  bill  came 
into  his  hands,  he  revised  it  in  such  a  manner,  that 
it  passed  the  house  by  a  decided  majority.  His  strong 
sense  of  justice,  and  his  comprehensive  and  discrimi- 
nating mind,  enabled  him  as  a  legislator  to  adopt  the 
law  to  any  new  state  of  things  with  the  same  ease 
with  which,  in  the  administration  of  justice,  he  applied 
the  settled  principles  of  law  to  new  cases  when  they 
occurred,  in  such  manner  as  to  do  perfect  justice 
between  the  parties.  Thus  a  law  was  passed  by  the 
legislature  of  Vermont,  perfectly  novel  in  its  char- 
acter, yet  so  clearly  founded  on  the  principles  of 
natural  justice,  that  it  has  always  been  in  great  favor 
with  the  people  of  this  state,  and  several  of  our  sister 
states  availing  themselves  of  our  invention  and  our 
experience,  have  adopted  the  same  system. 

In  the  year  1782,  his  father  conveyed  to  him  his 
farm  under  a  contract  that  he  should  support  his 
father  and  stepmother  during  their  lives,  and  educate 
his  three  younger  brothers,  which  contract  he  fulfilled 
to  the  entire  satisfaction  of  all  concerned.  But  it 
proved  to  be  an  unfortunate  contract  for  him.  In- 
stead of  making  his  farm  profitable,  his  lucrative 
practice  was  charged  as  well  with  the  support  of  his 
farm  as  with  the  support  of  his  family.  He  culti- 
vated his  farm  with  judgment,  and  never  lost  any- 
thing by  visionary  experiments ;  but  his  losses  were 
occasioned  by  his  absence  from  home  a  great  part  of 
the  year,  and  by  a  want  of  that  minute  attention  to 
the  details  of  the  business,  which  is  indispensable  to 


66  LIFE    OF    N  \IH  LNIEL    CHIP  MAN. 

render  farming  profitable.  For  the  profits  will  ever 
be  made  of  little  savings  of  time  and  expense,  and 
without  such  economy  a  loss  is  almost  certain.  And 
it  may  be  doubted  whether  any  one,  whose  mind  is  so 
engrossed  in  the  acquisition  of  knowledge,  can  ever 
pay  that  minute  attention  to  little  things  which  is 
indispensable  to  render  farming  profitable.  In  the 
year  1785  or  1786,  he  erected  a  forge,  and  procured 
a  store  of  goods  to  aid  in  carrying  it  on,  and  soon 
became  deeply  involved.  His  brother,  Darius  Chip- 
man,  who  was  in  the  practice  of  law  at  Rutland,  then 
exchanged  situations  with  him,  removed  to  Tin- 
mouth,  and  in  a  few  years  paid  the  debts.  They 
again  changed  situations,  and  Nathaniel  again  occu- 
pied the  old  farm  in  Tinmouth.  He  again  sustained 
a  loss  by  farming,  and  sold  his  farm.  During  the 
remainder  of  his  life,  he  depended  on  his  pension  for 
a  support.  When  he  published  his  work  on  Govern- 
ment, he  was  compelled  to  ask  assistance  from  his 
relatives. 

In  the  year  1786,  the  embarrassments  and  suffer- 
ings of  the  people,  which  have  been  adverted  to,  had 
increased  and  their  passions  had  become  more  and 
more  inflamed,  until  open  resistance  to  the  execution 
of  the  laws  was  apprehended.  And  when  the  legisla- 
ture convened  at  Rutland  in  October,  it  appeared  that 
the  passions,  prejudices  and  turbulence  of  the  people 
were  fully  represented  in  the  numerous  house  of  repre- 
sentatives. Unfortunately,  the  constitution  had  pro- 
vided no  check  upon  that  house,  and,  as  was  foreseen, 
it  proved  a  stormy  session.  They  passed,  what  was 
afterwards  called,  a  specific  tender  act,  obliging  the 


LIFE    OF    NATHANIEL    CHIPMAN.  67 

creditor  to  receive  on  execution,  at  their  appraised 
value,  such  articles  of  personal  property  as  the  debtor 
had  contracted  to  pay.  But  this  was  not  satisfac- 
tory to  those  who  were  as  destitute  of  such  articles 
of  property  as  they  were  of  money.  Some  were 
clamorous  for  a  general  tender  act,  obliging  the  cred- 
itor to  receive  on  execution  any  articles  of  personal 
property  which  should  be  tendered  by  the  debtor. 
Others  strenuously  insisted  on  a  bank  of  paper  mo- 
ney, and  there  was  great  reason  to  fear  that  one  or 
both  these  measures  would  be  adopted  by  the  legis- 
lature. Nathaniel  Chipman,  who  was  in  Rutland  at 
the  time,  and  who  had  witnessed  the  temper  of  the 
legislature,  became  alarmed,  being  fully  satisfied  that 
the  measures  proposed,  if  adopted,  must  greatly  in- 
crease and  prolong  the  sufferings  of  the  people.  Be- 
ing extremely  anxious  to  devise  some  means  by  which 
these  evils  might  be  averted,  he  requested  the  follow- 
ing members  of  the  legislature  to  meet  at  his  room 
the  next  evening  to  hold  a  consultation  on  the  sub- 
ject, namely,  Gideon  Olin,  of  Shaftsbury ;  Elijah 
Dewey,  of  Bennington  ;  Lemuel  Chipman,  of  Paw- 
let,  and  Thomas  Johnson,  of  Newbury.  The  first 
question  which  occurred,  after  they  came  together, 
was,  Are  there  any  other  members  of  the  legislature 
who  can  be  trusted,  and  safely  admitted  to  join  in 
our  deliberations  ?  Several  members  were  named, 
but  not  one,  who  in  the  opinion  of  those  present, 
could  be  safely  admitted.  They  were,  therefore,  com- 
pelled to  rely  on  their  own  influence  to  carry  such 
measures  as  they  should  devise.  They  then  took  a 
view  of  the  whole  ground ;   the  grievances  of  the 


68  LIFE    OF    NATHANIEL    CHIP  MAN. 

people,  both  real  and  imaginary,  their  inflamed  pas- 
sions and  the  turbulent  spirit  of  a  great  portion  of 
them,  the  violence  of  the  legislature,  and  the  de- 
structive nature  of  the  measures  which  were  pro- 
posed, and  the  probability  of  their  adoption,  unless 
they  could  be  postponed.  They  unanimously  agreed 
that  the  popular  current  was  too  strong  to  be  resist- 
ed ;  that  should  they  attempt  to  do  this  they  would 
be  swept  along  with  it,  and  only  add  to  its  momen- 
tum, and  render  it  more  destructive  ;  and  that  they 
could  therefore  do  nothing  to  any  good  purpose,  un- 
less they  could  devise  some  means  by  which  the  pro- 
posed measures  might  be  postponed  until  the  passions 
of  the  people  should  have  time  to  cool.  Having  this 
view  of  the  subject,  they  drew  up  the  resolution1  and 
preamble,  as  stated  in  Thompson's  Civil  History  of 
Vermont,  page  79.  The  next  day  the  resolution  was 
introduced,  and  in  support  of  it  it  was  observed,  that 
the  sufferings  of  the  people  had  become  so  severe, 
that  some  relief  was  absolutely  necessary ;  and  the 
great  and  important  question  was,  what  is  the  best 
mode  of  granting  relief?  Of  this  the  people  them- 
selves are  the  most  competent  judges  —  it  ought, 
therefore,  to  be  submitted  to  their  decision. 

Some  of  the  principal  supporters  of  the  measures 
before  the  legislature  perceived  the  design  of  those 

1  Resolved,  that  the  people  asscmhlc  in  their  respective  towns  on  the 
first  day  of  January,  1787,  at  the  usual  places  of  holding-  freemen's  meet- 
ings, and  there  express,  by  yea  or  nay,  their  approval  or  disapproval,  of 
emitting  a  small  bank  of  paper  money,  on  loan  or  otherwise,  of  continu- 
ing the  existing  tender  acts,  and  of  B  general  tender  act  ;  the  yeas  and 
nays  on  these  subjects  to  be  transmitted  to  the  speaker  of  the  assembly, 
to  be  a  guide  to  the  legislature  at  their  next  session. 


LIFE    OF    NATHANIEL    CHIPMAN.  69 

who  supported  the  resolution ;  that  their  sole  object 
was  to  delay  and  finally  defeat  their  favorite  meas- 
ures. But  those  who  supported  the  resolution,  having 
the  democratic  side  of  the  question,  prevailed ;  the  res- 
olution passed,  and  the  whole  subject  was  postponed 
until  the  next  session.  I  perceive  here  this  singular 
coincidence.  The  above-named  resolution  passed  on 
the  31st  day  of  October,  and  on  the  same  day  a  mob 
assembled  at  Windsor  to  stop  the  sitting  of  the  county 
court. 

At  this  session  of  the  legislature,  Nathaniel  Chip- 
man  was  elected  assistant  judge  of  the  supreme  court, 
the  first  lawyer  elected  a  judge  of  that  court.  At 
the  end  of  the  year  he  returned  to  his  practice  at 
the  bar.  Situated  as  he  was  on  the  bench,  one  of 
five  judges,  and  he  the  only  lawyer,  it  is  believed  that 
he  did  not  at  that  time  become  very  distinguished  as 
a  judge. 


CHAPTER   IV. 

Correspondence  between  Nathaniel  Chipman  and  Alexander  Hamilton  — 
Settlement  of  the  Controversy  with  New  York. 

When  in  the  summer  of  the  year  1788,  it  became 
evident  that  the  constitution  of  the  United  States 
would  be  adopted  by  all  the  other  states,  and  a  na- 
tional government  established,  the  attention  of  the 
most  intelligent  men  in  the  state  was  called  to  the 
peculiar  situation  of  Vermont.  To  remain  a  small 
independent  state,  between  the  United  States  and  the 
British  province  of  Quebec  was  not  to  be  thought  of, 
and  to  join  the  union,  our  controversy  with  New 
York  remaining  unsettled,  and  to  subject  our  landed 
titles  to  the  decision  of  the  federal  court,  was  con- 
sidered by  many  to  be  extremely  hazardous.  Nathan- 
iel Chipman  was  always  fearful  that,  if  the  question 
should  ever  be  brought  before  an  impartial  tribunal 
for  decision,  the  New  York  title  would  be  adjudged 
the  better  title.  He  had,  therefore,  been  opposed  to 
the  granting  of  lands  by  this  state,  which  had  before 
been  granted  by  New  York.  Having  this  view  of 
the  subject,  he  felt  extremely  anxious  to  devise  some 
means  by  which  the  controversy  with  New  York 
might  be  speedily  adjusted.  And  in  the  early  part  of  .Ju- 
ly, a  number  of  gentlemen,  among  whom  were  the  late 


LIFE    OF    NATHANIEL    CHIPMAN.  71 

Judge  Morris,  then  of  Tinmouth,  and  the  late  Judge 
Olin,  of  Shaftsbury,  met  at  his  house  in  Tinmouth  to 
hold  a  consultation  on  the  subject,  and  they  took  this 
view  of  it.  They  said  that  Hamilton,  Schuyler,  Har- 
rison, Benson  and  other  leading  federalists  in  New 
York  must  be  extremely  anxious  to  have  Vermont 
join  the  union,  not  only  to  add  strength  to  the  gov- 
ernment, but  to  increase  the  weight  of  the  northern  and 
eastern  states.  This  was,  therefore,  the  most  favora- 
ble time  for  settling  the  controversy  with  New  York, 
and  it  was  agreed  that  Nathaniel  Chipman  should 
write  to  Hamilton  on  the  subject.  As  the  conven- 
tion was  then  sitting  or  about  to  convene  at  Pough- 
keepsie  for  the  adoption  of  the  United  States  constitu- 
tion by  New  York,  of  which  Hamilton,  Schuyler, 
Harrison  and  Benson  were  members,  it  was  con- 
cluded to  send  the  letter  by  express.  The  letter  was 
delivered  to  Hamilton  while  attending  the  conven- 
tion, to  which  he  returned  an  answer  by  the  express. 
Every  fact  relative  to  the  adoption  of  the  federal 
constitution  by  the  State  of  New  York  must  ever 
be  interesting ;  for  it  was  generally  believed,  at  the 
time,  that  if  that  state  should  reject  the  constitution, 
the  national  government  would  not  be  established. 
I  was  the  bearer  of  the  letter  to  Mr.  Hamilton,  and 
arrived  at  Poughkeepsie  while  the  convention  which 
adopted  the  constitution  was  in  session.  1  repaired 
to  Mr.  Hamilton's  quarters,  and  delivered  the  letter. 
General  Schuyler,  Richard  Harrison,  and  Egbert 
Benson,  were  present.  When  Mr.  Hamilton  had 
read  the  letter,  and  communicated  the  contents  to 
the  others  present,  they  all  appeared  to  feel  a  deep 


72  LIFE    OF    NATHANIEL    CIIIPMAN. 

interest  in  the  subject,  and  made  many  inquiries  rela- 
tive to  the  people  of  Vermont,  particularly  whether 
they  could  be  induced  to  make  a  fair  compromise 
of  the  claims  of  New  York.  When  I  was  about  to 
retire,  Mr.  Hamilton  said  to  me  that,  at  a  certain 
hour  the  next  morning,  he  would  have  an  answer 
to  my  brother's  letter  prepared.  I  accordingly  called 
on  Mr.  Hamilton  at  the  hour  named,  and  received 
the  answer.  Some  conversation  took  place  relative 
to  my  journey  to  New  York,  and  I  took  liberty  to 
say  to  Mr.  Hamilton  that  I  should  be  inquired  of  in 
New  York  what  the  prospect  was  in  relation  to  the 
adoption  of  the  constitution,  and  to  ask  him  what 
I  should  say  to  them.  His  manner  instantly  changed, 
appearing  to  feel  an  intense  anxiety  on  the  subject, 
and  he  answered,  "  God  only  knows.  Several  votes 
have  been  taken  in  the  convention,  and  it  appears 
that  there  are  about  two  to  one  against  us."  I  was 
about  to  retire,  when  he  added,  in  a  most  emphatic 
manner,  "  Tell  them  that  the  convention  shall  never 
rise  until  the  constitution  is  adopted."  I  went  on 
to  New  York,  and,  within  a  very  few  days,  intelli- 
gence was  received  that  the  convention  had  adopted 
the  constitution.  This  intelligence  appeared  to  elec- 
trify the  whole  population,  and  produced  the  splendid 
celebration  of  the  event  which  I  witnessed ;  the 
details  of  it  would  be  here  out  of  place.  I  was 
surprised  that  so  great  and  so  sudden  a  change  in 
the  convention  had  taken  place,  and  heard  nothing 
said  of  the  means  by  which  it  had  been  effected. 
On  my  return  to  Vermont,  my  brother  was  absent, 
and  I  did  not  see  him  until  my  return  from  college 


LIFE    OF    NATHANIEL    CHIPMAN.  73 

the  next  autumn.  I  then  related  to  him  the  conver- 
sation with  Mr.  Hamilton,  and  expressed  my  surprise 
that  the  convention  adopted  the  constitution's©  soon 
after  that  conversation  ;  upon  which  he  gave  me  the 
following  explanation. 

Governor  George  Clinton,  who  was  president  of 
the  convention,  and  had  a  commanding  influence  in 
the  state,  was  strenuously  opposed  to  the  adoption 
of  the  constitution  ;  and  Dr.  Williams,  of  White 
Creek,  now  Salem,  was  an  attached  friend  of  Gov- 
ernor Clinton,  and  was,  with  him,  opposed  to  the 
adoption  of  the  constitution.  Williams  had  great 
influence  with  nearly  all  the  members  of  the  con- 
vention from  the  northern  part  of  the  state.  Of 
course,  they  were  with  him  in  the  opposition.  And 
thus,  by  the  influence  of  Clinton  and  Williams,  there 
was  a  decided  majority  of  the  convention  opposed 
to  the  adoption  of  the  constitution.  Still,  Hamilton 
did  not  despair  of  success,  but  made  an  effort  to 
convince  Williams  that  the  establishment  of  the 
national  government  was  indispensable  to  save  the 
country  from  anarchy  and  total  ruin ;  and  he  suc- 
ceeded. Williams  withdrew  from  the  opposition, 
and  brought  with  him  most  of  the  members  from 
the  northern  part  of  the  state.  By  this,  a  majority 
of  the  convention  were  found  in  favor  of  the  con- 
stitution, and  it  was  adopted  by  the  State  of  New 
York. 

The  following  is  all  the  correspondence  on  this 
subject  between  Nathaniel  Chipman  and  Alexander 
Hamilton,  which  is  to  be  found : 


74  LIFE    OF    NATHANIEL    CHIP  MAN, 


NATHANIEL    CHIPMAN    TO    ALEXANDER    HAMILTON. 

Tinmouth,  July  15,  1788. 

Sir  —  Your  character  as  a  federalist,  although  per- 
sonally unknown  to  you,  induces  me  to  address  you 
on  a  subject  of  very  great  importance  to  the  state  of 
Vermont,  of  which  I  am  a  citizen,  and  from  which,  I 
think,  may  be  derived  a  considerable  advantage  to 
the  federal  cause.  Ten  states  having  adopted  the 
new  federal  plan  of  government,  that  it  will  now  suc- 
ceed is  beyond  a  doubt.  What  disputes  the  other 
states  may  occasion,  I  know  not.  The  people  of  this 
state,  I  believe,  might  be  induced  almost  unanimously 
to  throw  themselves  into  the  federal  scale,  could  cer- 
tain obstacles  be  removed.  You  are  not  unacquainted 
with  the  situation  of  a  very  considerable  part  of  our 
landed  property.  Many  grants  were  formerly  made 
by  the  government  of  New  York,  of  lands  within  this 
territory  while  under  that  jurisdiction.  On  the  as- 
sumption of  government  by  the  people  of  this  state, 
the  same  lands,  partly  it  is  said  for  want  of  informa- 
tion respecting  the  true  situation  of  these  grants,  and 
partly  from  an  opinion  prevailing  with  some  of  our 
then  leaders,  that  the  New  York  grants  within  this 
territory  were  of  no  validity,  have  been  granted  to 
others  under  the  authority  of  this  state. 

It  is  now  generally  believed,  that,  should  we  be  re- 
ceived into  the  union,  the  New  York  grants  would, 
by  the  federal  courts,  be  preferred  to  those  of  Ver- 
mont. The  legislature  of  this  state  have  in  some  in- 
stances made  a  compensation  to  the  grantees  under 
New  York  ;  and  I  am  persuaded  would  do  the  same 


LIFE   OF    NATHANIEL    CHIPMAN.  75 

for  others  were  it  in  their  power,  but  they  are  in  pos- 
session of  no  more  lands  for  that  purpose.  For  these 
reasons,  and  I  presume  for  no  others,  the  governor 
and  several  gentlemen  deeply  interested  in  these  lands 
granted  by  Vermont,  have  expressed  themselves  some- 
what bitterly  against  the  new  federal  plan  of  govern- 
ment. Indeed,  were  we  to  be  admitted  into  the 
union  unconditionally,  it  would  produce  much  confu- 
sion. Now,  sir,  permit  me  to  ask  whether  you  do 
not  think  it  probable  that  the  federal  legislature,  when 
formed,  might,  on  our  accession  to  the  union,  be  in- 
duced on  some  terms,  to  make  a  compensation  to  the 
New  York  grantees,  out  of  their  western  lands,  and 
whether  those  grantees  might  not  be  induced  to  ac- 
cept such  compensation  ?  Let  me  further  suggest, 
whether  it  might  not  be  favorable  for  Vermont  to 
make  some  of  those  amendments  which  have  been 
proposed  by  several  states,  the  basis  of  her  admission  ? 
Could  the  difficulties  I  have  mentioned  be  removed, 
all  interests  in  opposition  would  be  reconciled  ;  and 
the  idea  of  procuring  justice  to  be  done  to  those  whom 
we  had,  perhaps,  injured  by  our  too  precipitate  mea- 
sures, and  of  being  connected  with  a  government 
which  promises  to  be  efficient,  permanent  and  honor- 
able, would,  I  am  persuaded,  produce  the  greatest 
unanimity  on  the  subject.  If  you  think  these  matters 
worthy  the  attention  of  the  friends  of  the  confederacy, 
be  good  enough  to  write  by  my  brother,  who  will  be 
the  bearer  of  this.  Our  legislature  will  meet  in  Oc- 
tober, when  these  matters  will  be  taken  up  seriously. 
Several  gentlemen  of  my  acquaintance,  who  arc  men 
of  influence  and  will  be  members  of  the  legislature, 


7()  LIFE    OF    N  VTIIANIF.I.    CHIPMAN. 

have  requested  mc  to  procure  all  the  information  in 
my  power  on  this  subject.  Anything  which  you  may 
suggest  to  me  in  confidence  will  be  sacredly  attended 
to,  of  which  Mr.  Kelley,  who  writes  by  the  same  op- 
portunity, will  give  you  the  fullest  assurance. 
I  am,  with  great  respect, 

Your  obedient,  humble  servant, 

Nathaniel  Chip  man. 

Mr.  Hamilton. 

alexander  hamilton  to  nathaniel  chipman. 

Poughkecpsie,  July  22,  1788. 

Sir  —  Your  brother  delivered  me  your  letter  of  tho 
15th  inst.  which  I  received  with  pleasure,  as  the  basis 
of  a  correspondence  that  may  be  productive  of  public 
good. 

The  accession  of  Vermont  to  the  confederacy  is 
doubtless  an  object  of  great  importance  to  the  whole  ; 
and  it  appears  to  me  that  this  is  the  favorable  mo- 
ment for  effecting  it  upon  the  best  terms  for  all 
concerned.  Besides  more  general  reasons,  there  are 
circumstances  of  the  moment  which  will  forward  a 
proper  arrangement.  One  of  the  first  subjects  of 
deliberation  with  the  new  congress  will  be  the  inde- 
pendence of  Kentucky,  for  which  the  southern  states 
will  be  anxious.  The  northern  will  be  glad  to  find 
a  counterpoise  in  Vermont.  These  mutual  interests 
and  inclinations  will  facilitate  a  proper  result. 

I  see  nothing  that  can  stand  in  your  way  but  tho 
interfering  claims  under  grants  of  New  York.  As 
to  taxation,  the  natural  operation  of  the  new  system 
will  place  you  exactly  where  you  might  wish  to  be. 


LIFE    OF    NATHANIEL    CHIPMAN.  77 

The  public  debt,  as  far  as  it  can  prudently  be  pro- 
vided for,  will  be  by  the  western  lands,  and  the  ap- 
propriation of  some  general  fund.  There  will  be  no 
distribution  of  it  to  particular  parts  of  the  community. 
The  fund  will  be  sought  for  in  indirect  taxation ;  as, 
for  a  number  of  years,  and  except  in  time  of  war, 
direct  taxes  will  be  an  impolitic  measure.  Hence, 
as  you  can  have  no  objection  to  your  proportion 
of  contribution  as  consumers,  you  can  fear  nothing 
for  the  article  of  taxation. 

I  readily  conceive,  that  it  will  be  scarcely  practica- 
ble for  you  to  come  into  the  union,  unless  you  are 
secured  from  the  claims  under  New  York  grants. 
Upon  the  whole,  therefore,  I  think  it  will  be  expe- 
dient for  you,  as  early  as  possible,  to  ratify  the  con- 
stitution, upon  condition  that  congress  shall  provide 
for  the  extinguishment  of  all  existing  claims  to  land 
under  grants  of  the  State  of  New  York,  which  may 
interfere  with  claims  under  the  State  of  Vermont. 

You  will  do  well  to  conform  your  boundary  to 
that  heretofore  marked  out  by  congress,  otherwise 
insuperable  difficulties  would  be  likely  to  arise  with 
this  state.  I  should  think  it  altogether  unadvisable 
to  annex  any  other  condition  to  your  ratification. 
For  there  is  scarcely  any  of  the  amendments  pro- 
posed that  will  not  have  a  party  opposed  to  it ;  and 
there  are  several  that  will  meet  with  a  very  strong 
opposition ;  and  it  would  therefore  be  highly  inex- 
pedient for  you  to  embarrass  your  main  object  by 
any  collateral  difficulties.  As  I  write  in  convention, 
I  have  it  not  in  my  power  to  enlarge. 

You  will  perceive  my  general  ideas  on  the  subject, 
if) 


78  LIFE    OF    NATHANIEL    CHIP  MAN* 

I  will  only  add,  that  it  will  be  wise  to  lay  as  little 
impediment  as  possible  in  the  way  of  your  reception 
into  the  union. 

I  am,  with  much  esteem,  sir, 

Your  obedient,  humble  servant, 

A.  Hamilton. 

Mr.  Chipman. 

alexander  hamilton  to  nathaniel  ciiil'man. 

Sm,  —  Your  favor  of  the  sixth  of  September  has 
been  duly  handed  to  me,  and  I  receive  great  pleasure 
from  the  hopes  you  appear  to  entertain  of  a  favor- 
able turn  of  affairs  in  Vermont  in  regard  to  the  new 
government.  It  is  certainly  an  object  of  mutual 
importance  to  yourselves  and  to  the  union,  and  well 
deserves  the  best  endeavors  of  every  discerning  and 
good  man. 

I  observe  with  satisfaction  your  opinion  that  Ver- 
mont will  not  make  a  point  of  introducing  amend- 
ments, (I  mean  as  a  condition  of  their  accession.) 
That  ground  would  be  the  most  hazardous  which  she 
could  venture  upon,  as  it  is  very  probable  that  such 
amendments  as  might  be  popular,  with  you,  would 
be  deemed  inadmissible  by  the  friends  of  the  system, 
who  will  doubtless  be  the  most  influential  persons 
in  the  national  councils,  and  who  would  rather  submit 
to  the  inconvenience  of  your  being  out  of  the  union 
till  circumstances  should  alter,  than  consent  to  any- 
thing that  might  impair  the  energy  of  the  govern- 
ment. 

The  article  of  taxation  is,  above  all,  the  most 
delicate  thing  to  meddle  with,  for  a  plenary  power 


LIFE    OF    NATHANIEL    CHIPMAN.  79 

in  that  respect  must  ever  be  considered  as  the  vital 
principle  of  government;  no  abridgment  or  consti- 
tutional suspension  of  that  power  can  ever,  upon 
mature  consideration,  be  countenanced  by  the  intel- 
ligent friends  of  an  effective  national  government. 
You  must,  as  I  remarked  in  my  former  letter,  rely 
upon  the  natural  course  of  things,  which,  I  am  satis- 
fied, will  exempt  you,  in  ordinary  times,  from  direct 
taxation,  on  account  of  the  difficulty  of  exercising 
it  in  so  extensive  a  country,  so  peculiarly  situated, 
with  advantage  to  the  revenue,  or  satisfaction  to  the 
people.  Though  this  difficulty  will  be  gradually 
diminished,  from  various  causes,  a  considerable  time 
must  first  elapse ;  and,  in  the  interim,  you  will  have 
nothing  to  apprehend  on  this  score. 

As  far  as  indirect  taxation  is  concerned,  it  will  be 
impossible  to  exempt  you  from  sharing  in  the  burthen, 
nor  can  it  be  desired  by  your  citizens.  I  repeat 
these  ideas  to  impress  you  the  more  strongly  with  my 
sense  of  the  danger  of  touching  this  cord,  and  of  the 
impolicy  of  perplexing  the  main  object  with  any  such 
collateral  experiments ;  while  I  am  glad  to  perceive 
that  you  do  not  think  that  your  people  will  be  tena- 
cious on  the  point. 

It  will  be  useless  for  you  to  have  any  view  in  your 
act  to  the  present  congress ;  they  can,  of  course,  do 
nothing  in  the  matter.  All  you  will  have  to  do  will 
be  to  pass  an  act  of  accession  to  the  new  constitu- 
tion, on  the  conditions  upon  which  you  mean  to  rely. 
It  will  then  be  for  the  new  government,  when  met, 
to  declare  whether  you  can  be  received  on  your 
terms  or  not. 


80  LIFE    OF    NATHANIEL    CHIPMAN. 

I  am  sorry  to  find  that  the  affair  of  the  boundary 
is  likely  to  create  some  embarrassment.  Men's  minds 
everywhere  out  of  your  state,  are  made  up  upon,  and 
reconciled  to  that  which  has  been  delineated  by  con- 
gress. Any  departure  from  it  must  beget  new  dis- 
cussions, in  which  all  the  passions  will  have  their 
usual  scope,  and  may  occasion  greater  impediments 
than  the  real  importance  of  the  thing  would  justify. 
If,  however,  the  further  claim  you  state,  cannot  be 
gotten  over,  with  you,  I  would  still  wish  to  see  the 
experiment  made,  though  with  this  clog ;  because  I 
have  it  very  much  at  heart  that  you  should  become  a 
member  of  the  confederacy.  It  is,  however,  not  to 
be  inferred  that  the  same  disposition  will  actuate 
every  body.  In  this  state  the  pride  of  certain  indi- 
viduals has  too  long  triumphed  over  the  public  inter- 
est, and  in  several  of  the  southern  states  a  jealousy  of 
northern  influence  will  prevent  any  great  zeal  for 
increasing  in  the  national  councils  the  number  of 
northern  voters.  I  mention  these  circumstances, 
(though  I  dare  say  they  will  have  occurred  to  you,) 
to  show  you  the  necessity  of  moderation  and  cau- 
tion on  your  part,  and  the  error  of  any  sanguine  cal- 
culation for  a  disposition  to  receive  you  at  any  rate. 
A  supposition  of  this  nature  might  lead  to  fatal  mis- 
takes. In  the  event  of  an  extension  of  your  boun- 
dary by  another  congressional  will,  would  it  be  im- 
practicable for  you  to  have  commissioners  appointed 
to  adjust  any  difference  which  might  arise  ?  I  pre- 
sume the  principal  object  with  you  in  the  extension  of 
your  boundary,  would  be  to  cover  sonic  private  inter- 
ests.    This  might  be  matter  of  negotiation.    There  is 


LIFE    OF    NATHANIEL    CHIPMAN.  <jl 

one  thing  which  I  think  it  proper  to  mention  to  you, 
about  which  I  have  some  doubts,  that  is,  whether  a 
legislative  accession  would  be  deemed  valid.  It  is 
the  policy  of  the  system  to  lay  its  foundation  on  the 
immediate  consent  of  the  people.  You  will  best 
judge  how  far  it  is  safe  or  practicable  to  have  re- 
course to  a  convention.  Whatever  you  do,  no  time 
ought  to  be  lost.  The  present  moment  is  undoubt- 
edly critically  favorable.  Let  it  by  all  means  be  im- 
proved.     I  remain,  with  esteem,  sir, 

Your  obedient  and  humble  servant, 

A.  Hamilton. 

The  author  of  the  Life  of  Hamilton  states  that  there 
is  no  date  to  my  brother's  letters  ;  indeed,  from  the  ra- 
pidity with  which  he  wrote,  and  the  pressure  of  his 
engagements,  this  omission  is  not  an  infrequent  oc- 
currence. 

The  foregoing  correspondence  prepared  the  way 
for  a  settlement  of  the  controversy  with  New  York. 
In  the  winter  following,  Mr.  Hamilton  and  Mr.  Chip- 
man  had  an  interview  at  Albany,  when  they  took  a 
view  of  the  subject  somewhat  different  from  their 
views,  which  appear  in  the  foregoing  correspond- 
ence, and  agreed  on  a  mode  of  settling  the  contro- 
versy, which  was  afterwards  adopted  by  the  two 
states.  The  legislature  of  New  York,  on  the  loth 
day  of  July,  1789,  passed  an  act  appointing  Robert 
Yates,  John  Lansing,  Gulian  Verplanck,  Simeon  De 
Witt,  Egbert  Benson  and  Melancthon  Smith,  com- 
missioners, with  full  powers  to  acknowledge  the  sove- 
reignty of  Vermont,  and  to  adjust  all  matters  of  con- 


oJ.  LIFE    OF    NATHANIEL    CHIFMAN. 

troversy  between  the  two  states.  And  on  the  23d  of 
October  following,  the  legislature  of  Vermont  passed 
an  act,  appointing  Isaac  Tickenor,  Stephen  R.  Brad- 
ley, Nathaniel  Chipman,  Elijah  Paine,  Ira  Allen,  Ste- 
phen Jacob  and  Israel  Smith,  commissioners,  on  the 
part  of  Vermont,  to  treat  with  those  of  New  York,  and 
to  remove  all  obstructions  to  the  admission  of  Vermont 
into  the  federal  union.  The  commissioners  of  the 
two  states  met  and  adjusted  all  matters  of  controversy 
between  them  ;  and  on  the  7th  day  of  October,  1790, 
the  commissioners,  on  the  part  of  New  York,  de- 
clared the  consent  of  the  legislature  of  that  state 
that  the  State  of  Vermont  be  admitted  into  the  union 
of  the  United  States  of  America.  And  that  imme- 
diately on  such  admission,  all  claims  of  jurisdiction 
by  the  State  of  New  York,  within  the  State  of  Ver- 
mont shall  cease,  &c.  It  was  further  agreed  and  de- 
clared, that  if  the  legislature  of  the  State  of  Ver- 
mont should,  on  or  before  the  1st  day  of  January, 
1792,  declare  that  on  or  before  the  1st  day  of  June, 
1794,  the  State  of  Vermont  would  pay  to  the  State  of 
New  York  the  sum  of  thirty  thousand  dollars,  imme- 
diately from  such  declaration  by  the  legislature  of 
Vermont,  all  rights  and  titles  to  lands  within  the  State 
of  Vermont,  under  grants  from  the  government  of  the 
Colony  of  New  York,  or  from  the  State  of  New  York 
should  cease,  those  excepted  which  were  made  in 
confirmation  of  the  New  Hampshire  grants.  The 
Legislature  of  the  State  of  Vermont  raised  the  sum  of 
thirty  thousand  dollars,  by  a  general  land  tax,  and 
paid  it  to  the  State  of  New  York  within  the  time  lim- 
ited for  the  payment. 


CHAPTER  V. 

Convention  called,  by  which  Vermont  acceded  to  the  Union  —  Speech  of 
Nathaniel  Chipman  in  the  Convention  —  Admission  of  Vermont  to  the 
Union. 

The  controversy  with  New  York  having  been  thus 
adjusted,  the  legislature  of  Vermont  called  a  conven- 
tion to  decide  the  question,  whether  Vermont  should 
accede  to  the  union.  This  convention  met  at  Ben- 
nington on  the  6th  day  of  January,  1791 ;  Nathaniel 
Chipman  was  a  member  of  the  convention,  and  de- 
livered the  following  speech,  urging  the  accession  of 
Vermont  to  the  union. 

Mr.  President,  —  The  subject  on  which  we  are 
now  called  to  deliberate  is  a  subject  of  great  mo- 
ment, and  is  attended  with  many  weighty  considera- 
tions. I  shall  waive  at  present  the  particular  circum- 
stances in  which  we  may  be  supposed  to  stand  with 
the  United  States,  on  account  of  the  claims  of  New 
York,  and  the  late  compromise  between  Vermont 
and  that  state.  I  shall  first  make  a  few  observations 
on  our  local  and  relative  situation  as  a  state,  and  the 
probable  consequences  that  would  attend  the  event 
either  of  our  continuing  independent,  or  of  our  ac- 
ceding to  the  Union.  I  will  then  briefly  remark  on 
the  principles  and  tendency  of  the  federal  constitu- 
tion. 


84  LIFE    OF    NATHANIEL    CHIPMAN. 

In  viewing  our  situation,  the  first  thing  that  strikes 
the  mind  is  the  limited  extent  of  our  territory,  inade- 
quate to  support  the  dignity  or  defend  the  rights  of 
an  independent  sovereignty,  and  the  fortune  that 
usually  attends  such  petty  sovereignties. 

The  division  of  an  extensive  country  into  small 
independent  sovereignties  greatly  retards  civil  im- 
provement. This  was  formerly  the  case  in  Europe  ; 
and  the  consequence  was,  a  long  continuance  in 
savage,  and  almost  brutal  manners.  It  has  been 
found  that,  where,  through  an  extensive  territory,  the 
smaller  sovereignties  have  united  under  one  general 
government,  civilization  has  proceeded  more  rapidly, 
and  the  kindly  affections  have  much  sooner  gained 
the  ascendency,  than  where  the  country  still  con- 
tinued under  numerous  neighboring  governments. 
The  reason  why  the  one  state  is  more  favorable  to 
civilization  than  the  other,  is  founded  in  the  consti- 
tution of  human  nature.  Among  small,  independent 
states,  as  among  independent  individuals,  without  a 
common  judge,  the  weak  will  be  jealous  of  the 
strong,  and  will  endeavor,  by  art  and  cunning,  to 
supply  the  want  of  power.  The  strong  will  be  ready 
to  decide  everything  by  force,  according  to  their 
present  interest.  Hence  follow  a  total  want  of 
national  faith,  recriminations,  animosities,  and  open 
violence,  under  the  idea  of  reprisals ;  and  foreigm  r 
becomes  but  another  name  for  an  enemy.  In  this 
situation,  the  minds  of  men  are  kept  in  a  constant 
state  of  irritation.  Their  turbulent  spirits  ill  brook 
the  restraint  of  laws.  The  passion  of  revenue, 
which,  in  proportion  to  the  weakness  of  the  govern- 


LIFE    OF   NATHANIEL    CHIPMAN.  85 

ment,  becomes  necessary  for  the  protection  of  the 
individual,  is  soon  inflamed  to  a  degree  of  enthu- 
siasm. Common  danger  alone,  and  that  imminently 
impending,  can  suspend  its  baneful  operation  among 
the  members  of  the  same  society ;  —  a  situation  fit 
only  for  savages,  and  in  this  situation  savages  have 
ever  existed.  But,  in  an  extensive  government, 
national  prejudices  are,  in  a  great  measure,  sup- 
pressed. Hostilities  are  removed  to  a  distance ;  pri- 
vate injuries  are  redressed  by  a  common  judge.  The 
passion  of  revenge,  no  longer  necessary  for  the  pro- 
tection of  the  individual,  is  suspended.  The  people 
no  longer  behold  an  enemy  in  the  inhabitants  of  each 
neighboring  district.  They  find  all  members  of  one 
great  family,  connected  by  all  the  ties  of  interest,  of 
country,  affinity,  and  blood.  Thus  are  the  social 
feelings  gratified,  and  the  kindly  affections  expanded 
and  invigorated. 

Vermont,  continuing  independent,  would  not  be 
liable  to  all  the  evils  which  I  have  enumerated,  in 
their  full  extent;  but,  as  a  small  state,  she  will  be 
liable  to  many  and  great  inconveniences.  In  the 
vicinity,  and  almost  encircled  by  the  United  States, 
now  become  great  and  powerful  by  means  of  an 
energetic  system  of  government,  our  intercourse  will 
be  on  very  unequal,  and  frequently  on  very  mortify- 
ing terms.  Whenever  our  interests  clash  —  and 
clash  they  will,  at  some  times  —  with  the  interests 
of  the  union,  it  requires  very  little  political  sagacity 
to  foresee  that  every  sacrifice  must  be  made  on  our 
part.  When  was  it  ever  known  that  a  great  and 
powerful  nation  sacrificed,  or  even  compromised  her 
11 


36  LIFE    OF    NATHANIEL    CHIPMAN. 

interest,  in  justice  to  a  weak  neighbor,  who  was  un- 
able to  make  an  effectual  demand  ?  Nay,  such  is 
the  nature  of  mankind,  were  they  disposed  to  judge 
candidly  in  such  circumstances,  they  are  in  a  great 
measure  incapable ;  and  who  shall  be  a  common 
judge  ?  We  have  formerly  experienced  the  disposi- 
tion of  neighboring  powers,  whose  interests  were 
adverse  to  our  own,  and  well  know  the  conse- 
quences;—  extravagant,  as  we  deemed  them,  and 
unjustifiable  claims,  on  their  part;  animosities,  fac- 
tions, and  even  bloodshed,  among  ourselves. 

Our  vicinity  to  an  extensive  province  of  the  British 
empire  is  a  circumstance  worthy  of  consideration. 
There  is  not  an  immediate  prospect  of  war  between 
the  United  States  of  America  and  Great  Britain ; 
yet,  from  their  mutual  recriminations  in  respect  to 
the  observance  of  the  late  treaty,  and  the  retention 
of  the  frontier  posts  in  the  hands  of  the  British, 
contrary  to  express  stipulation,  such  an  event,  at 
some  future  day,  is  not  improbable.  Should  that 
happen,  Vermont  would  be  in  a  situation  much  to 
be  regretted.  Our  local  situation  with  the  United 
States,  our  present  connection  with  many  of  their 
inhabitants,  connected  by  all  the  ties  of  blood  and 
kindred  affection,  would  forbid  an  alliance  with  Great 
Britain.  As  allies  of  the  United  States,  we  should 
experience  from  the  British  all  the  resentment  of  an 
enemy  whom,  by  our  alliance,  we  had  voluntarily 
made  such,  and  to  whose  ravages,  from  our  frontier 
situation,  we  must  be  continually  exposed.  And 
should  we  find  in  the  United  States  that  quick  sense 
of  the  injuries  we  should  suffer?     Will  they  fly  to 


LIFE    OF    NATHANIEL    CHIPMAN.  87 

our  defence  with  the  same  alacrity,  with  the  same 
national  spirit,  as  they  would  defend  themselves  when 
attacked  in  one  of  their  own  members  ?  Will  they 
equally  attend  to  our  interest  as  to  their  own  in  the 
settlement  of  a  peace,  or  in  adjusting  the  expendi- 
tures of  the  war?  The  supposition  is  highly  chi- 
merical ;  nor  less  so  the  idea  that,  by  observing  a 
neutral  conduct,  we  may  enjoy  all  the  blessings  of 
peace,  while  the  flames  of  war  rage  on  every  side. 
Our  little  country  would  become  a  rendezvous  and 
thoroughfare  for  the  spies  of  both  nations.  Our 
citizens  would,  by  both  parties,  in  many  instances, 
be  drawn  into  an  infamous  correspondence  of  that 
kind.  Every  act  of  friendship,  or  even  of  common 
courtesy,  done  to  one  party,  would  excite  the  jealousy 
of  the  other.  Their  armies,  to  whom  we  should  not 
be  in  a  condition  to  deny  a  passage,  would,  on  every 
the  least  pretext  of  necessity,  think  themselves  justi- 
fied in  seizing  our  property  for  their  support.  In  a 
word,  we  should  be  equally  used,  equally  distressed, 
insulted,  and  plundered  by  both. 

Again,  we  may  take  another  view  of  the  subject, 
as  it  relates  to  the  promotion  of  learning  and  liberal 
science.  Confined  to  the  narrow  bounds  of  Vermont, 
genius,  for  want  of  great  occasions  and  great  objects 
to  expand  the  powers  of  the  mind,  will  languish  in 
obscurity.  The  spirit  of  learning,  from  which  states 
and  kingdoms  derive  more  solid  glory  than  from  all 
heroic  achievements,  and  by  which  individuals,  raised 
above  the  common  lot  of  humanity,  are  enabled  to 
contribute  to  the  happiness  of  millions  in  distant 
parts  of  the  globe,  will  be  contracted,  and  busy  itself 


88  LIFE    OF    NATHANIEL    CHIPMAN. 

only  in  small  scenes,  commensurate  with  the  exigen- 
cies of  the  state,  and  the  narrow  limits  of  our  govern- 
ment. In  proportion  as  the  views  are  more  confined, 
more  limited,  and  more  local,  the  more  is  the  mind 
contracted  by  local  prejudices.  But,  received  into 
the  bosom  of  the  union,  we  become  brethren  and 
fellow-citizens  with  more  than  three  millions  of  peo- 
ple. Instead  of  being  confined  to  the  narrow  limits 
of  Vermont,  we  become  citizens  of  an  extensive 
empire.  Here  is  a  scene  opened  that  will  expand 
the  social  feelings ;  the  necessity  and  facility  of  mu- 
tual intercourse  will  tend  to  eradicate  local  preju- 
dices ;  the  channels  of  information  will  become  wide 
and  far  extended ;  the  spirit  of  learning  will  be  called 
forth  by  every  motive  of  interest  and  laudable  am- 
bition, and  exalted  by  the  magnitude  of  the  objects 
presented.  Genius  will  soar  to  the  heights  of  science. 
In  a  word,  independent,  we  might  ever  continue 
little,  and,  I  had  almost  said,  contemptible ;  united, 
we  become  great  by  the  reflected  greatness  of  the 
empire  with  which  we  unite ;  our  general  interests 
will  be  the  same  as  those  of  the  union ;  and,  repre- 
sented in  the  national  councils,  our  local  interests 
will  have  their  due  weight.  From  the  encourage- 
ment given  to  arts  and  manufactures,  as  an  inland 
country,  we  shall  reap  more  than  a  proportional  ad- 
vantage ;  and,  in  case  of  a  war,  an  attack  upon  us 
will  be  felt  through  every  member  of  the  union. 
National  safety,  national  pride,  and  national  resent- 
ment, —  not  the  petulance  of  a  tribe,  but  great  as 
the  nation  offended,  —  will  all  conspire  in  our  de- 
fence. 


LIFE    OF    NATHANIEL    CHIPMAN.  89 

These  observations  relate  only  to  the  expediency 
of  joining  the  union  in  our  present  situation,  and 
to  the  removal  of  such  objections  as  may  arise  to 
the  measure,  antecedent  to  a  discussion  of  the  con- 
stitution under  consideration.  I  shall  not  now  enter 
into  a  minute  examination  of  the  federal  constitution, 
but  only  observe  upon  some  of  its  leading  features, 
the  principal  end  in  view  in  its  formation,  and  how 
far  it  is  calculated  to  attain  that  end. 

The  great  end  in  view,  and  which  has  heretofore 
been  the  grand  desideratum  in  federal  polities,  is  to 
bring  all  the  states  of  the  confederacy  to  act  in 
concert,  in  those  measures  which  have  an  imme- 
diate relation  to  the  good  of  the  whole.  There  are 
three  principal  methods  by  which  this  has  been  at- 
tempted : 

1.  The  first,  because  the  most  ancient,  is  by  a 
council,  empowered  to  legislate  upon  the  several 
states  composing  the  confederacy.  Of  this  kind 
were  the  council  of  the  Amphictyons,  at  the  head 
of  the  confederated  states  of  ancient  Greece.  In 
this  case,  as  none  but  states  can  refuse  to  obey,  a 
delinquent  can  be  nothing  less  than  a  whole  state, 
already  provided  with  arms  and  councils  for  a  for- 
midable opposition.  To  enforce  the  decrees  of  the 
council,  which  we  may  call  the  laws  of  the  union, 
it  is  necessary  to  draw  out  the  forces  of  the  comply- 
ing states,  and  to  compel  obedience  by  dint  of  arms. 
The  history  of  ancient  Greece,  for  many  years,  is 
infamous  for  a  succession  of  such  wars.  Such  was 
the  famous  Peloponnesian  war,  which  raged  with 
almost  unabated  fury  near  thirty  years.     Such  ever 


90  LIFE    OF    NATHANIEL     CHIPMAN. 

has  been,  and  such  ever  will  be,  the  effect  of  this 
kind  of  government,  —  if  it  may  be  called  a  govern- 
ment,—  unless,  like  the  late  congress  of  the  United 
Stales  of  Vmerica,  they  suffer  their  laws  and  ordi- 
nances to  be  violated  with  impunity.  And,  in  this 
case,  the  consequence  will  be  the  same ;  the  govern- 
ment will  soon  reach  the  lowest  point  of  degradation, 
and  crumble  on  the  brink  of  evanescence. 

2.  The  second  mode  is  by  a  council  empowered  only 
to  propose  measures  to  the  confederated  states,  sub- 
ject to  the  ratification  of  the  states  severally  before 
they  can  have  the  force  of  laws.  The  United  Neth- 
erlands furnish  us  with  an  instance  of  this  second 
form.  The  states-general  are  the  grand  council  of 
the  confederacy.  This  council,  although  pompously 
styled  their  High-Mightinesses,  have,  in  matters  of 
national  concern,  only  a  power  to  propose.  The 
several  states  have  reserved  to  themselves  the  right  of 
ratification.  No  law  can  be  constitutionally  binding 
until  it  has  received  the  ratification  of  each  indi- 
vidual state.  The  veto  of  a  single  state,  in  some 
instances  little  superior  in  point  of  territory  to  the 
town  of  Bennington,  may  disconcert,  and  actually  has 
disconcerted  the  wisest  measures.  Frequently,  on 
great  emergencies,  such  is  the  delay,  before  all  the 
states  can  be  brought  to  agree,  that  the  opportunity 
of  acting  is  forever  lost.  This  has  induced  the  states- 
general,  aided  by  the  stadtholdcr,  the  hereditary  Prince 
of  Orange,  who  administers  the  republic,  and  whose 
power  and  influence  are  very  great,  frequently  to  act 
without,  and  even  contrary  to  the  authority  of  the 
smaller  states.     Such  a  disregard   of  the    constitu- 


LIFE    OF    NATHANIEL    CHIPMAN.  91 

tional  principles  of  their  union,  has,  even  among  that 
plodding,  phlegmatic  people,  produced  violent  con- 
cussions, and  some  within  our  own  memory. 

3.  The  third  form  is  by  a  council,  or  federal  legis- 
lature, empowered  in  all  instances  that  concern  the 
confederacy  at  large,  to  legislate  on  the  citizens  of 
the  several  states,  and  to  carry  their  laws  into  execu- 
tion by  their  own  officers.  Of  this  third  form  we 
have  an  instance  in  the  present  constitution  of  the 
United  States  of  America.  In  this  case  the  national 
legislature,  in  all  matters  that  concern  the  general 
interests  of  the  confederacy  empowered,  and  limited 
by  the  constitution,  legislate,  not  upon  the  states  col- 
lectively, but  upon  the  citizens  of  the  union.  No 
ratification  is  necessary  further  than  their  own  act. 
The  constitution,  and  all  authoritative  acts  under  the 
constitution,  are  the  supreme  law  of  the  land.  To 
prevent  different  constructions  that  might  arise  from 
different  opinions  in  several  independent  tribunals, 
under  the  influence  of  local  interest  or  prejudice,  the 
judiciary,  for  all  cases  arising  under  the  constitution 
and  laws  of  the  union  hold  their  offices  by  appoint- 
ment of  the  supreme  power  of  the  confederacy,  and 
are  amenable  only  to  that  power,  and  their  decisions 
are  carried  into  effect  by  ministerial  officers,  appoint- 
ed by  the  same  authority.  While  the  national  legis- 
lature are  vested  with  supreme  power  in  all  matters 
that  relate  to  the  general  welfare  of  the  union  ;  the 
states  legislatures,  within  their  several  jurisdictions, 
retain  as  sovereign  all  those  powers,  the  due  adminis- 
tration of  which,  most  endears  government  to  man- 
kind.    To  them  it  belongs,  among  their  own  citizens, 


92  LIFE    OF    NATHANIEL    CHIPMAN. 

to  regulate  the  mode,  and  to  secure  the  acquisition  of 
property  ;  to  redress  injuries  ;  to  animadvert  upon 
morals ;  and  to  restrain  and  punish  those  crimes, 
which  attack  private  property,  violate  personal  secu- 
rity, and  disturb  the  peace  of  society. 

The  senators  of  the  United  States,  appointed  by 
the  several  state  legislatures,  and  from  time  to  time 
amenable  to  them,  may  be  considered  as  guardians  of 
the  rights  of  their  respective  states  against  all  en- 
croachments of  the  national  government.  The  rep- 
resentatives in  congress,  elected  by  the  people,  and 
dependent  on  them  through  the  means  of  biennial 
elections,  are  bound  by  all  the  ties  of  interest  and 
affection,  to  watch  over  the  rights  of  individuals  and 
the  rights  of  their  several  states,  with  which  their 
electors  are  more  immediately  connected.  The  pow- 
er of  appointing  electors  for  the  choice  of  the  presi- 
dent and  vice  president,  gives  the  states  legislatures  a 
sufficient  check  on  the  executive  of  the  federal  gov- 
ernment. It  is  true,  this  form  of  federal  government 
is  almost  a  phenomenon  in  the  political  world.  Hard- 
ly a  shadow  of  such  powers,  as  relative  to  their  execu- 
tion, is  to  be  found  in  the  history  of  ancient  or  mod- 
ern politics.  Its  novelty,  however,  in  this  age  of 
improvement,  no  less  in  the  science  of  politics  than 
in  other  sciences,  can  hardly  be  made  a  serious  ob- 
jection ;  still  it  is  acknowledged,  that  however  beauti- 
ful in  theory,  or  as  delineated  on  paper,  its  efficiency 
in  point  of  practice  might  still  be  considered  as  prob- 
lematical, had  we  not  seen  it  evinced  by  actual  ex- 
periment The  "idea  alone  of  the  efficiency  of  the 
federal  government,  at  the  instant  of  its  organization, 


LIFE    OF    NATHANIEL    CHIPMAN.  93 

added  strength  to  the  states  governments,  and  put 
an  end  to  those  turbulent  commotions,  which  made 
some  of  them  tremble  for  their  political  existence ; 
nor  has  this  state  reaped  an  inconsiderable  advantage 
from  the  suppression  of  that  contagious  spirit  of  fac- 
tion which  existed  in  some  of  the  neighboring  states. 
Two  years  have  not  yet  elapsed  since  the  commence- 
ment of  this  administration.  They  have  already  pro- 
vided for  funding  the  national  debt ;  they  have  in  a 
great  measure  restored  public  credit,  which,  from 
the  weakness  of  the  former  government,  they  found 
almost  in  a  state  of  desperation.  They  have  enriched 
the  nation  with  a  very  productive  revenue.  The  wis- 
dom, justice,  and  equality  of  their  laws  and  regula- 
tions are  fully  evinced  by  a  prompt  and  almost  uni- 
versal observance.  In  very  {ew  instances  have  their 
courts  been  called  to  animadvert  upon  a  violation  of 
their  laws.  It  may  be  said  that  this  arises  from  the 
confidence  of  the  people  in  the  present  members  of 
the  government.  That  undoubtedly  has  its  influence. 
But  a  people  free,  jealous  and  discerning,  as  the 
Americans  are,  do  not  suffer  measures  to  pass  unex- 
amined. They  never  long  give  to  any  men,  or  set 
of  men,  an  unmerited  confidence.  It  is  probable 
that  the  national  council  will  long  and  deservedly  re- 
tain the  confidence  of  the  people.  The  people,  when 
called  to  choose  rulers  and  legislators  for  an  exten- 
sive empire,  of  which  themselves  are  a  constituent 
part,  experience  a  dilation  of  mind  ;  they  rise  above 
vulgar  and  local  prejudices,  and  confer  their  suffrages 
on  men  whose  abilities  and  integrity  are  equal  to  the 
task  of  empire. 
12 


94  LIFE    OF    NATHANIEL    CHIPMAN. 

One  important  consideration  ought  not  to  be  omit- 
ted. The  present  constitution  is  still  subject  to 
amendments.  Whatever  shall  be  found  dangerous, 
or  impracticable,  may  be  retrenched  or  corrected. 
That  wisdom  which  formed  it,  aided  and  matured 
by  experience,  may  carry  it  to  a  greater  degree  of 
perfection  than  anything  that  has  yet  been  known 
in  government. 

I  have,  sir,  in  the  course  of  these  observations, 
hinted  at  the  disadvantages  that  will  accrue  to  us, 
continuing  independent.  I  have  touched  upon  some 
of  the  advantages  of  an  accession  to  the  union. 
I  have  pointed  out  the  leading  principles  of  the 
constitution,  and  its  probable  and  actual  efficiency 
in  strengthening  the  government  of  the  several  states, 
and  in  securing  the  tranquillity,  happiness,  and  pros- 
perity of  the  union.  The  more  minute  investigation 
of  the  subject  I  leave  to  others.  At  the  same  time, 
I  rest  fully  persuaded,  that,  when  accurately  exam- 
ined with  that  candor  and  impartiality  which  will 
doubtless  mark  the  proceedings  of  this  convention, 
every  material  objection  to  the  constitution,  or  to  the 
accession  of  the  State  of  Vermont  to  the  union, 
will  be  easily  obviated  or  totally  disappear. 

After  a  session  of  four  days,  the  convention  re- 
solved, yeas  105,  nays  2,  that  application  be  made  to 
congress  for  the  admission  of  Vermont  into  the  fed- 
eral union.  And,  on  the  loth  day  of  January, 
1791,  the  legislature,  in  order  to  carry  into  effect 
the  foregoing  resolution,  appointed  Nathaniel  Chip- 
man  and   Lewis   R.  Morris  to  attend  congress,  and 


LIFE    OF    NATHANIEL    CHIPMAN.  95 

negotiate  for  the  admission  of*  Vermont  into  the 
federal  union.  And,  on  the  4th  day  of  March, 
1791,  Vermont  became  one  of  the  United  States 
of  America. 


CHAPTER  VI. 

Elected  Chief  Justice  —  Confirmation  Charter  under  New  York  —  Why 
they  were  not  taken  by  the  Settlers  on  the  west  Side  of  the  Mountain 
—  The  Law  in  relation  to  those  Charters  settled  by  Judge  Chipman  — 
Appointed  District  Judge  —  Letters  to  General  Schuyler  and  Governor 
Robinson  —  Sketches  of  the  "  Principles  of  Government"  —  Reports 
and  Essays  —  Resigned  bis  Office  of  District  Judge  —  Appointed  one 
of  a  Committee  to  revise  the  Statutes  —  Elected  Chief  Justice  —  His 
Character  as  a  Politician. 

Nathaniel  Chipman  had,  in  October,  1789,  been 
elected  Chief  Justice  of  the  Supreme  Court  of  the 
State,  and  continued  in  that  office  until  October, 
1791,  when  he  was  appointed  Judge  of  the  Court 
of  the  United  States  for  the  District  of  Vermont. 

In  the  administration  of  justice  in  this  state,  pre- 
vious to  the  year  1791,  the  judges  were  greatly  per- 
plexed with  the  confirmation  charters  under  New 
York.  To  elucidate  this  subject,  and  make  it  clearly 
understood  by  the  reader,  it  is  necessary  to  advert 
to  the  times  when  these  confirmation  charters  were 
issued.  And  the  reader  will  not  be  displeased,  if,  in 
order  to  fill  a  chasm  in  our  early  history,  I  go  farther 
than  shall  appear  consistent  with  the  leading  design 
of  this  work. 

During  the  contest  between  the  Governor  of  New 
1  lamp-hire  and  the  Governor  of  New  York  for  the 


LIFE    OF    NATHANIEL    CHIPMAN.  97 

jurisdiction  of  the  territory  now  forming  the  State  of 
Vermont,  each  claimed  the  right  of  granting  the  lands, 
and  each  treated  the  grants  of  the  other  as  void. 
The  Governor  of  New  Hampshire  first  granted  a 
great  number  of  townships,  and  almost  all  the  settle- 
ments made  before  the  revolutionary  war,  on  both 
sides  of  the  mountain,  were  made  under  the  New 
Hampshire  title.  The  Governor  of  New  York  grant- 
ed a  portion  of  the  same  lands  in  the  counties  of 
Bennington  and  Rutland,  which  had  been  previously 
granted  by  the  Governor  of  New  Hampshire,  and 
settled  under  that  title.  The  New  York  grantees 
commenced  actions  of  ejectment  against  some  of 
the  settlers,  and  recovered  judgments  against  them 
before  the  courts  in  Albany.  The  settlers  made  a 
successful  resistance,  defending  their  possessions  by 
force.  And,  in  October,  1772,  a  convention  was 
holden  at  Manchester,  by  which  it  was  decreed  that 
no  person  should  take  a  confirmation  charter  under 
New  York.  In  the  mean  time,  the  settlers  on  the 
east  side  of  the  mountain,  generally,  surrendered 
their  New  Hampshire  charters  to  the  Governor  of 
New  York,  took  confirmation  charters,  and  lived 
quietly  under  the  laws  of  New  York  ;  —  two  counties 
having  been  organized  on  Connecticut  River  by  that 
government,  —  Cumberland  at  the  south,  and  Glou- 
cester at  the  north.  The  inhabitants  of  these  coun- 
ties, who  had  thus  submitted  to  New  York,  were, 
by  the  inhabitants  of  Bennington  county,  considered 
as  apostates,  as  base  deserters  of  the  common  cause. 
And,  when  any  sheriff  or  other  officer  under  New 
York  had  occasion  to  pass  from  the  county  of  Cum- 


98  LIFE    OF    NATHANIEL   CHIPMAN. 

bcrland  or  Gloucester,  through  Bennington  county,  to 
Albany,  they  were  obliged  to  travel  in  such  manner 
as  to  escape  observation  ;  sometimes  secreting  them- 
selves in  the  woods  by  day,  and  travelling  by  night. 

Now,  what  was  the  cause  of  this  very  extraordinary 
state  of  things  ?  Why  did  the  settlers  in  Bennington 
county,  so  near  Albany  City  Hall,  resist  the  power 
of  New  York,  and  successfully  defend  their  posses- 
sions under  their  New  Hampshire  charters,  while  the 
settlers  on  Connecticut  River,  having  the  Green 
Mountains  between  them  and  Albany,  submitted  to 
the  government  of  New  York,  surrendered  their  New 
Hampshire  charters,  and  took  confirmation  grants 
from  the  governor  of  that  colony  ?  If  the  reverse 
of  this  had  taken  place  —  if  the  settlers  in  Benning- 
ton county  had  submitted  to  New  York,  had  surren- 
dered their  New  Hampshire  charters,  and  taken  con- 
firmation charters,  and  those  on  Connecticut  River 
had  made  a  successful  resistance,  —  a  bare  statement 
of  the  fact  would  have  furnished  a  satisfactory  ex- 
planation. But,  as  the  facts  are,  they  require  an 
explanation,  which  can  be  given,  but  not  in  as  few 
words  as  I  could  wish. 

The  sum  demanded  by  the  Governor  of  New 
York,  for  a  confirmation  charter  of  a  township,  was 
seventy  pounds,  New  York  currency.  At  that  time, 
specie  was  the  only  circulating  medium,  and  that 
extremely  scarce.  During  the  previous  French  wars, 
and  several  years  after,  the  New  England  colonies 
had  issued  bills  of  credit,  or,  in  the  language  of  that 
period,  banks  of  paper  money ;  and,  as  there  was 
no  fund  provided  for  their  redemption  of  the  bills, 


LIFE    OF    NATHANIEL   CHIPMAN.  99 

they  became  depreciated,  and,  of  course,  drove  most 
of  the  specie  out  of  the  country.  This  paper  money 
was  called  in,  and  withdrawn  from  circulation,  a  few 
years  before  the  commencement  of  the  revolutionary 
war,  leaving  the  country  nearly  destitute  of  a  circu- 
lating medium ;  by  reason  of  which,  the  value  of 
money  was  increased,  and  the  prices  of  all  species 
of  property  greatly  depressed,  —  so  much  so,  that, 
on  the  first  of  May,  1775,  the  average  price  of  cows, 
passing  at  the  appraisal  of  men,  was  forty  shillings. 
This  fact  will  enable  any  one  to  ascertain  what  has 
been  the  depreciation  of  money  since  that  period. 
Yet,  valuable  and  scarce  as  money  then  was,  each 
individual  proprietor  could  raise  his  proportion  of  the 
seventy  pounds,  New  York  currency,  to  obtain  a 
confirmation  charter,  —  it  being  little  more  than  two 
dollars  and  fifty  cents,  —  or  to  secure  the  title  to  a 
farm  containing  one  hundred  acres,  less  than  one 
dollar.  Although  some  individuals  on  the  east  side 
of  the  mountain  had  purchased  a  number  of  rights, 
yet  no  individual  or  company  of  individuals  had 
purchased  a  number  of  townships.  The  proprietors 
were  therefore  able,  in  every  case,  to  raise  money 
to  pay  for  a  confirmation  charter ;  and  no  one  will 
deny  that  they  were  wise  in  doing  so.  To  have  re- 
fused the  payment  of  a  sum  so  trifling,  compared 
with  the  value  of  the  land,  to  secure  an  unquestion- 
able title,  would  have  been  quite  inexcusable.  But 
why  were  not  the  settlers  on  the  west  side  of  the 
mountain  equally  wise  ?  why  did  they  spend  vastly 
greater  sums  in  defending  themselves  against  the 
New  York  claimants,  and  put  at  hazard  their  entire 


100  LIFE    OF    NATHANIEL    CHIPMAN. 

property  ?  The  answer  is,  it  was  wholly  out  of  the 
power  of  the  leading  men  to  raise  a  sufficient  sum 
of  money  to  obtain  confirmation  grants  of  their 
lands. 

The  Onion  River  Company,  formed  some  years 
before  the  commencement  of  the  revolutionary  war, 
for  the  purchasing  of  lands  in  the  Onion  River 
country,  —  as  the  north-western  part  of  the  New 
Hampshire  Grants  was  then  called,  —  consisted  of 
Ethan  Allen,  Heman  Allen,  Levi  Allen,  Zimri  Allen, 
Ira  Allen,  and  Remember  Baker.  They  had  pur- 
chased lands  in  the  New  Hampshire  Grants  to  the 
amount  of  about  four  townships ;  and  this,  it  was 
understood  at  the  time,  had  exhausted  their  funds. 
Ethan  Allen  was  never  possessed  of  much  property. 
His  views  were  elevated  quite  above  the  paltry  busi- 
ness of  acquiring  it.  Heman  Allen  commenced 
business  as  a  country  merchant,  a  few  years  before 
the  revolutionary  war,  but  never  acquired  much 
property.  Levi  Allen  was  a  prodigal,  and  never 
possessed  any  property.  Zimri  and  Ira  Allen  were 
young,  and  had  never  engaged  in  any  business. 
Remember  Baker  was  a  mill-wright,  —  an  energetic, 
enterprising  man,  —  but  could  at  no  time  have  raised 
any  considerable  sum  of  money.  It  must  therefore 
have  been  quite  impossible  for  the  Onion  River 
Company  to  raise  a  sufficient  sum  of  money  to  ob- 
tain confirmation  charters  of  their  lands.  There 
was  then  no  alternative  but  to  rely  on  their  New 
I  [ampshire  title  ;  and,  should  that  fail,  to  defend  their 
possessions  by  force ;  and  they  were  heartily  joined 
in  this  course  by  the  whole  body  of  the  inhabitants 


LIFE    OF    NATHANIEL    CHIPMAN.  101 

of  Bennington.  A  great  portion  of  them  had  pur- 
chased their  lands  of  Samuel  Robinson,  the  first 
settler  of  the  town.  And,  as  Robinson  was  their 
voucher,  it  belonged  to  him  to  raise  money  to  obtain 
a  confirmation  of  their  title ;  and  the  large  amount 
of  the  sum  required  must,  with  Robinson,  have  had 
all  the  weight  of  a  most  conclusive  argument  in  favor 
of  the  New  Hampshire  title. 

Having  thus  taken  their  stand  in  opposition  to 
New  York,  the  leaders  soon  infused  into  the  great 
body  of  the  settlers  their  own  spirit,  which  at  once 
raised  them  above  all  paltry  calculations  of  pounds, 
shillings  and  pence,  and  enabled  them  to  achieve  the 
independence  of  the  state.  The  state  having  been 
thus  organized  by  those  who  had  been  long  combined 
in  opposition  to  the  New  York  title,  on  the  ground 
that  it  was  void  in  law,  and  who  had  also  rendered 
it  more  utterly  void  by  force,  it  could  not  be  expected 
that  the  New  York  title  would  be  in  higher  favor 
with  the  courts  of  Vermont  than  the  New  Hampshire 
title  had  been  with  the  courts  of  New  York.  Accord- 
ingly, the  Vermont  judges,  viewing  the  confirmation 
charters  as  the  wages  of  apostacy,  adjudged  them  to 
be  utterly  void  to  every  intent  and  purpose.  This 
did  gross  injustice  to  the  grantees  under  these  charters. 
But,  during  the  time  that  Nathaniel  Chipman  was 
Chief  Justice,  in  the  year  1791,  he  settled  the  law 
in  relation  to  these  charters  in  such  manner  as  to  do 
equal  justice  to  all  concerned.  In  the  language  of 
an  eminent  jurist,  who  practised  before  the  supreme 
court  at  the  time,  "  Judge  Chipman  was  the  first 
among  our  judges,  who  rose  so  far  above  the  preju- 

13 


102  LIFE    OF    NATHANIEL    CHIPMAN. 

dices  of  the  times  in  Vermont,  against  the  State  of 
New  York,  as  to  give  such  eilect  to  the  confirmation 
charters,  as  effectually  to  secure  the  rights  of  the 
grantees  under  them,  consistently  with  the  rights  of 
the  New  Hampshire  grantees."  (See  D.  Chipman's 
Reports,  p.  56.) 

Ever  watchful  of  the  public  interest,  and  ever 
ready  to  render  all  the  aid  in  his  power  for  the  pro- 
motion of  the  general  welfare,  he  wrote  the  following 
letters  to  his  correspondents :  — 

NATHANIEL    CHIPMAN    TO    GENERAL    PHILIP    SCHUYLER. 

Rutland,  January  25th,  1790. 

Sir,  —  When  at  Philadelphia  last  winter,  we  had 
some  conversations  on  the  subject  of  opening  a  canal 
from  Lake  Champlain  to  Hudson's  River.  I  find  the 
subject  will  probably  employ  the  attention  of  your 
state  legislature,  at  the  present  session.  If  the  fol- 
lowing information,  which  I  have  been  at  some  pains 
to  collect,  will  be  of  any  service  in  the  course  of  that 
business,  I  flatter  myself  it  will  be  a  sufficient  apology 
for  my  addressing  you  on  the  subject. 

It  will  be  needless  to  enumerate  the  advantages 
that  would,  in  such  event  accrue  to  the  people  in  the 
northern  parts  of  the  State  of  New  York.  I  shall, 
therefore,  confine  myself  to  Vermont.  From  this 
state  the  trade  of  three  counties  would  flow  to  New 
York  through  that  channel  —  Rutland,  Addison,  and 
Chittenden.  This  comprehends  a  tract  of  country 
one  hundred  and  twenty  miles  in  length,  north  and 
south,  and  averaging  in  breadth,  east  and  west,  from 
twenty  to  thirty  miles.     The  county  of  Rutland,  with 


LIFE    OF    NATHANIEL    CHIPMAN.  103 

from  eighty  to  one  hundred  and  twenty  miles  of  land- 
carriage  to  Lansingburg,  trades  almost  solely  with 
New  York.  From  a  pretty  accurate  account  which 
I  have  collected,  there  have  been  manufactured  and 
exported  from  this  county,  between  the  first  of  De- 
cember, 1790,  and  the  first  of  December,  1791,  three 
hundred  tons  of  pot  and  pearl  ashes.  My  accounts 
from  the  counties  of  Addison  and  Chittenden,  the  two 
northern  counties  on  Lake  Champlain,  are  not  so  ac- 
curate ;  but  I  am  well  assured  that  they  exported 
during  the  same  year,  not  less  than  two  hundred  tons. 
This  last,  from  the  great  expense  of  transportation  to 
the  New  York  market,  is  mostly  vended  in  the  Pro- 
vince of  Quebec.  It  is  computed,  that  there  was 
in  these  three  counties,  the  last  year,  a  surplus  over 
and  above  the  consumption  of  the  inhabitants,  of 
thirty  thousand  bushels  of  wheat.  Yet  such  is  the 
expense  of  transportation,  that  we  gain  very  little  by 
the  surplus.  The  cash  price  has  been  estimated  at 
from  three  shillings  to  three  shillings  and  sixpence  per 
bushel ;  but  there  is  not  a  ready  market  for  it  at  that 
price.  The  price  of  wheat  in  the  Quebec  market  is 
usually  very  low.  Those  whose  trade  is  with  that 
province  are  now  purchasing  it  at  three  shillings. 
Those  who  trade  to  New  York  do  not,  in  general, 
consider  wheat  an  article  in  which  they  can  make  re- 
mittance. Were  a  water  communication  opened,  as 
proposed,  the  Quebec  trade,  except  for  lumber,  would 
be  immediately  deserted,  and  the  whole  would  centre 
in  New  York.  The  reasons  are  so  apparent  that  I 
need  not  suggest  them.  The  facility  of  conveyance 
would  enable  the  merchant  to  remit  many  articles, 


10l  LIFE    OF    NATHANIEL    CHIPMAN. 

which  are  now  worthless,  by  reason  of  the  expense 
of  transportation,  and  to  give  a  higher  price  for  all. 
Merchants,  too,  would  afford  their  goods,  especially 
heavy  articles,  at  a  much  lower  price  than  they  can 
at  present.  The  annual  saving  in  the  price  of  salt 
alone  would  be  very  great. 

There  are  now  in  the  county  of  Rutland  fourteen 
forges,  one  furnace,  and  one  slitting  mill,  and  two 
furnaces  in  building,  which  will  be  in  blast  another 
season.  There  are  four  forges  in  the  county  of  Ad- 
dison, and  two  in  the  county  of  Chittenden.  In  the 
county  of  Rutland  are  great  quantities  of  iron  ore, 
and  also  on  the  west  side  of  Lake  Champlain.  Vast 
quantities  of  iron,  would  in  a  few  years  be  transported 
on  the  proposed  canal. 

There  are,  in  this  part  of  the  country,  numerous 
quarries  of  marble,  some  of  them  of  a  superior  qual- 
ity. Machines  may  be  easily  erected  for  sawing  it 
into  slabs  by  water,  and  in  that  state,  by  means  of  a 
water  communication,  it  might  become  an  important 
article  of  commerce. 

But  above  all,  agriculture  will  furnish  the  means  of 
trade.  The  whole  country,  with  few  exceptions,  will 
produce  good  wheat.  The  wheat  grown  on  the 
marie  lands  about  Lake  Champlain,  is  of  a  quality, 
perhaps  inferior  to  none  raised  in  any  part  of  the 
State  of  New  York.  Add  to  this,  that  there  are  few 
better  grazing  countries.  Take  the  whole  extent  of 
this  territory,  there  is  not  more  than  one  third  part  of 
it  under  cultivation  ;  but  the  population  is  rapidly 
increasing.  The  number  of  inhabitants  in  these  three 
counties,  on  taking  the  last  census,  was  thirty  thou- 


LIFE    OF    NATHANIEL    CHIPMAN.  105 

sand.  Were  a  canal  now  opened,  as  proposed,  I 
think,  taking  into  view,  the  extent  and  fertility  of 
the  land  on  both  sides  of  the  lake,  with  the  rapid 
increase  of  population,  it  will  not  be  extravagant  to 
suppose,  that  through  this  channel  alone,  New  York, 
in  less  than  ten  years,  would  command  the  trade  of 
one  hundred  thousand  people.  It  is  certainly  an  ob- 
ject worthy  of  public  attention,  and  I  hope  it  will 
meet  with  the  encouragement  it  deserves.  Be  kind 
enough  to  pardon  me  the  trouble  of  this  letter. 
And  believe  me  to  be,  with  great  respect 
And  sincere  regard,  your  obedient  servant, 

Nathaniel  Chipman. 

NATHANIEL    CHIPMAN  TO  MOSES    ROBINSON,  SENATOR  IN  CONGRESS. 

Rutland,  February,  12,  1792. 

Dear  Sir,  —  Before  the  receipt  of  your  favor  of 
the  23d  of  January,  I  had  been  informed  of  the  fate  of 
the  bill  apportioning  representatives,  &x.  Peace  be 
to  its  manes.  I  must  confess  I  did  not  at  first  advert 
to  the  inequality  which  the  smaller  states  suffered  by 
means  of  the  fractional  parts;  but  I  soon  found,  while 
the  ratio  of  Virginia  was  one  representative  to  30,000 
and  some  odd  hundreds,  that  of  Delaware  was  one  to 
59,000 ;  of  Vermont,  one  to  42,550.  I  have  seen 
Mr.  Ames's  speech  on  the  subject ;  he  has  treated  it 
in  a  masterly  manner.  I  could  not  feel  the  force  of 
those  arguments,  which  went  upon  the  convenience 
and  inconvenience  of  number  in  the  house,  and  a 
proportion  between  the  house  and  the  senate.  The 
principle  of  the  federal  government  is  virtue.  By 
which,  I  understand  a  sentiment  of  attachment  to  the 


106  LIFE    OF    NATHANIEL    CIIIPMAN. 

government  and  laws.  This  dictates  a  spirit  of  mod- 
eration ;  a  facility  in  accommodating  particular  to 
general  interests ;  reciprocally  to  accommodate  one 
with  the  least  possihle  injury  to  the  other.  That 
ratio  is  the  most  equitable,  and  can  alone  support  the 
government  without  violence,  which  represents  most 
equally,  both  in  number  and  quantity,  all  those  pas- 
sions, sentiments  and  interests,  that  have  national 
consequences.  A  legislature  formed  upon  the  prin- 
ciple of  equal  representation,  will  rarely  violate  the 
public  sentiment,  or  sacrifice  the  national  interest. 
Deliberation  is  of  more  consequence  than  the  saving 
of  a  very  considerable  expense.  Jn  a  government 
like  this,  which  derives  its  whole  energy  from  public 
sentiment,  lengthy  discussions  on  important  national 
matters,  are  indispensably  necessary.  The  people 
attentively  peruse,  and  take  part  in  the  debates  ; 
they  become  acquainted  with  the  several  interests  to 
be  accommodated  ;  they  foresee  the  result,  and  are 
ready  to  adopt  the  measures  of  government,  as  soon 
as  they  are  brought  to  a  decision.  I  am  very  ap- 
prehensive that  the  different  opinions,  which  at  pre- 
sent so  warmly  agitate  the  people  upon  the  Indian 
war,  is  owing  in  some  measure  to  the  secrecy  with 
which  that  subject  has  been  discussed  in  congress. 
Not  that  I  censure  the  manner  of  proceeding  ;  I  can 
suppose  it  necessary  even  at  the  risk  of  this  conse- 
quence. I  do  not  suppose  the  whole  is  to  be  attri- 
buted to  this  circumstance,  but,  I  believe,  in  want  of 
that  general  information  that  would  have  been  derived 
from  a  public  discussion,  the  public  mind  is  much 
more  powerfully  agitated  by  the  two  unsucessful  ex- 
peditions. 


LIFE    OF    NATHANIEL    CHIPMAN.  107 

As  to  the  justice  of  the  war  on  the  part  of  the 
United  States,  of  which  so  much  has  heen  said,  I  am 
wholly  incompetent  to  decide.  I  do  not  know  how 
my  opinion  will  agree  with  yours,  but  I  think,  in 
whatever  light  it  may  place  former  measures,  the  jus- 
tice of  the  war  in  its  first  rise  cannot  be  made  a  ques- 
tion in  deciding  what  measures  ought  now  to  be 
pursued.  Peace,  certainly,  ought  to  be  our  darling 
object.  But  the  annals  of  history  afford  not  a  single 
instance  of  a  peace  made  or  maintained  with  savage 
nations  flushed  with  victory,  upon  any  terms  of  reci- 
procity. They  will  never  be  sincerely  desirous  of 
peace  until  they  have  felt  the  superiority  of  our  arms. 
To  act  only  on  the  defensive,  could  never  have  the 
desired  effect.  Such  is  the  extent  of  our  frontiers, 
and  such  it  would  be  if  contracted  within  any  given 
limits  that  could  rationally  be  proposed,  that  we  can 
hardly  conceive  of  an  army  sufficient  for  a  complete 
defence,  or  a  sum  equal  to  the  expenditures.  A  much 
less  army,  well  appointed,  and  well  instructed  in  the 
discipline  necessary  for  an  Indian  war,  would  be  suffi- 
cient to  extirpate  the  whole  race  of  Indians,  from  the 
six  nations  to  the  Mississippi,  and  from  the  Ohio  to 
the  northern  lakes.  God  forbid  such  an  idea  should 
ever  be  realized.  It  is  infinitely  more  to  the  honor  of 
the  United  States,  to  the  honor  of  humanity,  to  en- 
deavor to  cultivate  a  secure  peace  with  that  people, 
and  to  lead  them  by  slow  degrees,  as  they  will  bear 
it  to  a  relish  for  civil  improvement.  It  is  certain,  for 
a  long  time  we  can  maintain  with  them  only  a  pre- 
carious peace,  and  that  only  by  being  ready  in  arms 
on  our  part. 


108  LIFE    OF    NATHANIEL    CHIP  MAN  J 

There  will  be  found  villains  on  the  borders,  fugi- 
tives from  justice  in  the  states,  who,  upon  the  least 
pique,  or  from  motives  of  gain,  will  kill  an  Indian  for 
his  pack,  with  as  little  remorse  as  they  would  kill  a 
beaver  for  his  skin.  Such,  generally,  arc  the  man- 
ners and  feelings  of  savages  that  they  resent  an  injury 
done  to  an  individual  of  a  tribe,  as  an  injury  done  to 
the  whole  tribe  ;  and  an  injury  done  by  an  individual 
of  another  tribe  or  nation,  is  resented  against  the 
whole  tribe  or  nation.  The  impetuosity  of  their  tem- 
pers, when  inflamed  by  a  sense  of  injury,  renders 
them  incapable  of  the  delay  of  mutual  discussion  and 
amicable  satisfaction.  Indeed,  this  sentiment  pre- 
vails not  a  little  among  those  nations  who  think  them- 
selves highly  civilized.  This  will  be  a  source  of  hos- 
tilities not  to  be  wholly  prevented  by  the  utmost  vigi- 
lance and  circumspection  of  government. 

Everything  goes  on  peaceably  and  cleverly  in  Ver- 
mont. The  improvement  of  inland  navigation  is  at 
present  the  most  interesting  topic  of  conversation. 
The  legislature  of  Massachusetts  have  granted  to 
Colonel  Worthington  and  others  the  privilege  of  lock- 
ing the  falls  on  Connecticut  River  in  that  state.  The 
legislature  of  New  York,  it  seems,  arc  determined 
on  opening  a  water  communication  between  the  wa- 
ters of  Champlain  and  Hudson  River.  These  are 
objects  highly  interesting  to  this  state. 

Believe  me,  with  esteem, 

Your  most  obedient  servant, 

N  VIII  \Mi:i.    ClIlPMAN. 

In  the  year  1793,  he  published  a  work  entitled, 


LIFE    OF    NATHANIEL    CHIPMAN.  109 

"  Sketches  of  the  Principles  of  Government,"  and 
the  same  year  he  published  a  small  volume,  entitled, 
"  Reports  and  Dissertations,"  containing  reports  of  a 
number  of  cases  decided  while  he  was  Chief  Justice 
of  the  Supreme  Court,  with  dissertations  on  the  stat- 
ute adopting  the  common  law  of  England,1  the  statute 
of  offsets,  on  negotiable  notes,  and  on  the  statute  of 
conveyances.  Soon  after  this  he  became  dissatisfied 
with  the  office  of  district  judge.  There  was  very 
little  business  in  the  district  or  circuit  court,  and  be- 
ing anxious  for  more  active  employment,  he  resigned 
his  office  of  district  judge,  and  returned  to  his  prac- 
tice at  the  bar,  in  which  he  continued  until  October, 
1796,  when  he  was  again  elected  Chief  Justice  of  the 
Supreme  Court. 

The  same  year,  he  was  appointed  a  member  of  a 
committee  to  revise  our  code  of  statute  laws ;  and 
it  was  well  known,  that  almost  all  the  acts  known  as 
the  revised  laws  of  1797  were  written  by  him ;  and, 
being  in  the  congressional  library  at  Washington, 
with  the  statute  laws  of  the  other  states,  they  have 
attracted  the  attention  of  jurists,  who  have  not  hesi- 
tated to  say,  that  they  find  no  other  code  of  statute 
laws  written  in  a  style  so  distinguished  for  simplicity, 
perspicuity,  and  technical  accuracy. 

As  a  politician,  he  was  of  the  school  of  Washington 
and  Hamilton,  who  established  the  national  govern- 
ment against  a  powerful  opposition  from  the  anti- 
federalists.  He  was  a  prominent  member  of  the 
federal  party,  and,  because  influential,  the  more  ex- 

1  This  dissertation  will  be  found  in  the  Appendix,  No.  I. 
14 


110  LIFE    OF    NATHANIEL    CHIPMAN. 

posed  to  have  his  character  assailed  by  the  opposing 
anti-federal  party.  Vet  they  made  no  specific  charges 
against  him,  but  confined  themselves  to  such  vague 
abuse  as  is  comprised  in  the  epithets  of  aristocrat, 
monarchist,  British  tory.  Nathaniel  Chipman  an  aris- 
tocrat !  This  must  sound  very  oddly  to  those  who 
have  read  his  work  on  Government,  and  to  all  those 
who  have  witnessed  his  plain,  republican  manners, 
habits,  and  sentiments,  through  a  long  life. 

The  federalists  did  not  fail  to  calumniate  the  dem- 
ocratic party,  —  the  anti-federalists  having,  at  the 
commencement  of  the  French  revolution,  assumed  the 
name  of  democrats,  —  but  charged  them  indiscrimi- 
nately with  being  anarchists  and  French  Jacobins. 
How  startling  it  would  be  at  this  day,  should  any  one 
assert  that  James  Madison,  always  in  the  front  rank 
of  conservatives,  was  an  anarchist !  Such  is  the 
course  of  all  political  parties,  and  such  the  result. 
Each  party  struggles  to  retain  its  power,  or  to  rise 
into  power,  by  depressing  its  opponents.  And  hence, 
as  in  the  instances  above  stated,  individuals  frequently 
emerge  from  the  clouds  of  calumny,  in  which  they 
had  been  enveloped  by  party  interest  grown  into 
party  malignity,  and  appear  directly  the  reverse  of 
what  they  had  been  represented. 

Neither  as  a  politician,  nor  as  a  statesman,  was 
the  subject  of  this  memoir  one  of  those  who  are 
aptly  termed  difficult  men,  but  was  always  disposed 
to  compromise  by  yielding  all  minor  points,  —  ever 
considering  it  to  be  his  duty  to  support  the  best 
practicable  measures.  He  seemed  to  be  entirely 
free  from  that  egotistical  obstinacy,  which  is  so  inju- 


LIFE    OF    NATHANIEL    CHIPMAN.  Ill 

rious  in  public,  and  so  troublesome  in  private  life. 
But,  whenever  any  measure  was  proposed  which  he 
deemed  a  departure  from  settled  principles,  he  seemed 
to  be  instinctively  opposed  to  it ;  especially  if  he 
deemed  it  a  violation  of  constitutional  principles,  or 
as  establishing  a  precedent  which  might  prove  inju- 
rious to  the  government.  In  this  light  he  viewed  the 
proposition  for  the  Hartford  Convention.  When, 
therefore,  in  October,  1814,  he  received  information, 
at  his  residence  in  Tinmouth,  that  a  proposition 
would  be  made  in  the  legislature,  then  in  session  at 
Montpelier,  to  appoint  delegates  to  that  convention, 
he  immediately  set  out  for  Montpelier,  arrived  there 
in  season,  and,  by  his  influence,  the  measure  was 
suppressed. 

We  have  seen  that  he  took  an  active  part  in  the 
revolutionary  war,  and  that,  after  he  left  the  army, 
he  became  an  actor  in  our  long  and  doubtful  struggle 
for  independence  as  a  state.  And  it  appears,  that 
his  interest  in  the  public  welfare,  his  attachment  to 
our  free  institutions,  and  his  confidence  in  the  suc- 
cessful result  of  our  experiment  in  free  government, 
were  but  increased  by  the  obstacles  which  appeared 
in  the  way,  and  by  his  unremitted  exertions  to  remove 
them.  As  a  mother  becomes  more  strongly  attached 
to  a  helpless  child,  which  requires  all  her  care,  than 
to  a  healthy  one,  which  requires  little  attention,  so 
our  patriot  fathers  became  more  strongly  attached 
to  our  free  institutions,  by  reason  of  the  care  they 
were  compelled  to  bestow  upon  them  in  their  infancy, 
to  prevent  their  dissolution. 

As  a  statesman,  he  was  practical  rather  than  theo- 


112  LIFE    OF    NATHANIEL    CHIPMAN. 

retical.  He  seemed  to  be  aware  that  we  can  in 
everything  conceive  of"  a  perfection  which  we  can 
never  attain.  And,  while  he  observed  others,  in  their 
struggles  to  reach  the  highest  conceivable  perfection 
at  once,  go  beyond  what  is  practicable  and  become 
visionaries,  he  was  content  to  take  experience  for  his 
guide,  and  advance  slowly,  but  steadily,  to  reach  the 
utmost  attainable  perfection.  His  mind  was  eminent- 
ly logical,  but  his  reasoning  was  principally  by  anal- 
ogy and  induction.  This  gave  his  mind  a  wider 
range,  rendered  it  more  discriminating,  and  gave  it 
a  more  practical  cast.1 

1  The  reader  will  find  in  the  Appendix,  No.  VIII.,  a  statement  of  some 
of  Judge  Chipman's  political  opinions,  in  a  letter  to  Alexander  Hamilton, 
occasioned  by  certain  proceedings  of  the  Democratic  Society  of  the 
county  of  Chittenden. 


CHAPTER  VII. 

Elected  Senator  —  His  Speech  in  the  Senate  on  a  Resolution  concerning 
a  breach  of  its  Privileges  —  Letter  expressing  his  Views  of  the  French 
Revolution  —  His  Speech  on  the  Judiciary  Act. 

In  October,  1797,  he  was  elected  a  senator  in  con- 
gress for  six  years  from  the  4th  of  March,  1798.  In 
that  body  he  was  distinguished  for  his  talents,  his 
learning  and  his  independence.  On  the  19th  of 
March  he  delivered  the  following  speech  in  the  sen- 
ate, on  a  resolution  to  bring  the  editor  of  the  Aurora 
before  the  senate,  to  answer  for  a  breach  of  the  privi- 
leges of  that  body,  in  publishing  certain  virulent  para- 
graphs respecting  its  proceedings  in  certain  matters 
then  under  the  consideration  of  the  senate. 

Mr.  President,  — The  honorable  gentleman1  last 
up  has  dwelt  on  an  objection,  which  has  been  fre- 
quently urged  with  peculiar  emphasis  in  the  course  of 
this  debate,  "  that  if  the  senate  take  upon  themselves 
to  vindicate  the  privileges  of  their  body,  they  must 
of  necessity  be  their  own  judges  ;  that  this  is  unfit- 
ting, that  it  is  against  natural  justice,  and  ought  never 
to  be  admitted." 

But  the  position  is  not  founded  in  truth.  When- 
ever the  right  of  self-defence,  of  self-protection,  ex- 

1  Mr.  Marshall,  of  Kentucky. 


114  LIFE    OF   NATHANIEL    CHIPMAN. 

ists  in  any  individual,  or  society  of  individuals,  the 
right  of  judging  each  in  his  own  cause  equally  exists. 
It  is  admitted  from  necessity  in  certain  instances.  It 
is  in  those  instances  strictly  natural,  and  comports 
with  natural  justice.  It  is,  indeed,  the  great  business 
of  government  to  diminish  this  necessity  to  individu- 
als of  exercising  this  right,  by  a  provision  of  laws  and 
tribunals,  to  which  all  may  resort  for  a  redress  of 
injuries.  But  no  provision  can  extend  to  all  cases. 
The  right  of  self-defence,  of  self-protection,  is,  and 
ever  must,  on  certain  occasions,  be  left  to  the  indi- 
vidual. It  is  left  to  the  nation,  and  to  certain  pur- 
poses, as  I  shall  hereafter  endeavor  to  prove,  is  vested 
in  the  higher  and  more  independent  departments  of 
the  government.  The  right  of  judging  is  in  any  man 
or  body  of  men  coexistent  and  precisely  coextensive 
with  the  right  of  self-defence  or  self-protection.  Of 
what  avail  would  be  the  right  of  self-defence,  unac- 
companied by  the  right  to  judge  of  the  means  and 
measures  of  the  defence  necessary  ?  Is  a  person 
whose  life  is  threatened  with  an  instant  attack,  coolly 
to  refer  his  case  to  some  tribunal  to  decide  whether 
the  occasion  will  justify  a  defence,  and  to  what  pre- 
cise extent  ?  No,  sir,  the  laws  of  nature  do  not  thus 
defeat  its  rights.  Those  laws  have  inseparably  con- 
nected the  right  of  judging  with  the  right  of  self- 
defence  ;  the  latter  cannot  exist  even  in  theory  with- 
out the  former.  The  individual  is  still  under  the 
correction  of  the  law,  to  which  he  is  amenable  for 
the  exercise  of  this  and  every  other  personal  right. 
Public  bodies  are  under  the  restraint  of  character  and 
public  opinion  ;  and  these  will,  on  all  occasions,  be  a 


LIFE    OF    NATHANIEL    CHIPMAN.  115 

sufficient  security  for  the  use  of  a  sound  discretion  in 
the  exercise  of  the  right. 

Sir,  in  recurring  to  the  resolution  before  us,  I  per- 
ceive that  in  this  discussion  are  involved  principles 
of  great  importance  and  extensive  influence.  For, 
though  at  this  time  we  apply  them  to  a  single  part 
only,  yet  either  directly  or  in  their  consequences, 
they  affect  all  the  great  principles  of  our  government. 
They  are,  perhaps,  involved  in  some  degree  of  ob- 
scurity ;  but,  I  believe,  the  obscurity  arises  rather 
from  the  novelty  of  a  discussion  of  these  principles, 
than  from  anything  in  the  nature  itself  of  the  princi- 
ples. Satisfied  with  a  practice  which  has  been  hand- 
ed down  to  us  from  time  immemorial,  the  principles 
in  which  the  practice  was  founded  have  been  suffer- 
ed to  remain  unexplored,  and  to  become  obscured 
through  the  rust  of  neglect.  It  is  necessary  to  draw 
them  from  that  rust,  and  carefully  examine  them  on 
this  occasion. 

If,  sir,  the  privileges  which  are  asserted  in  the  reso- 
lution are  not  constitutionally  vested  in  this  senate, 
we  ought  to  reject  it,  as  leading  to  an  unwarrantable 
assumption  of  power.  But,  sir,  if  certain  rights  are 
established  by  the  constitution,  and  committed  to  the 
senate  in  trust,  for  the  protection  of  the  body,  and  to 
enable  it  in  conjunction  with  the  other  branches  of 
the  government  calmly  and  securely  to  pursue  the 
great  end  of  its  institution,  the  happiness  and  pros- 
perity of  the  community,  can  we  neglect  to  assert 
those  privileges,  and  vindicate  those  rights,  if  at  any 
time  we  shall  see  them  grossly  violated  ?  If  we 
should  neglect,  from  a  supine  inattention,  we  should 


116  LIFE    OF    NATHANIEL    CHIPMAN. 

be  chargeable  with  unfaithfulness  to  our  trust.  If, 
clothed  with  competent  authority,  as  I  conceive  we 
are,  we  neglect  through  fear,  we  are  chargeable  with 
weakness.  If,  from  partial  considerations  or  sinister 
motives,  we  refuse,  we  are  justly  chargeable  with 
criminality. 

It  is  said,  sir,  that  the  constitution  of  the  United 
States,  by  which  alone  all  the  powers  of  this  govern- 
ment are  instituted,  has  vested  in  the  senate  no  privi- 
leges, in  the  parliamentary  sense  of  that  term,  exclu- 
sive of  the  privilege  of  the  individual  members.  All, 
however,  have  not  gone  so  far. 

Let  us  carefully  investigate  this  important  subject. 
Let  us  inquire, 

1.  Whether  any  privileges  are,  by  the  constitution, 
vested  in  this  senate,  extending  to  the  whole  body  ? 

And  2.  If  any  such  are  vested,  whether  we  are 
prohibited  by  any  express  clause  in  the  constitution, 
or  any  necessary  construction,  to  claim  or  assert 
them  ? 

Sir,  it  is  said  that  there  is  in  the  constitution  no 
grant  of  privileges  to  congress,  or  to  either  house  of 
congress,  in  express  words,  and  this  may  without  diffi- 
culty be  admitted.  But  first  let  it  be  observed,  that 
the  words  "  granted  "  and  "  delegated  "  are  not  in 
the  constitution  used  in  the  appropriate  sense  of  those 
words,  but  as  equivalent  to  the  word  "  instituted." 
The  people  of  the  United  States,  with  the  assent  of 
the  states  governments,  which  had  been  already  es- 
tablished, instituted  the  national  government  and  its 
several  powers,  but  did  not  grant  or  delegate  either. 
Did  the  people  grant  or  delegate  the  power  to  them- 


LIFE    OF    NATHANIEL    CHIPMAN.  117 

selves  ?  This  would  be  an  absurdity.  Or  to  the  state 
governments?  This  will  not  be  contended.  Or  to 
the  administrators  of  the  national  government  ?  Cer- 
tainly not.  The  national  government  and  its  powers 
were,  by  the  constitution,  instituted  for  the  general 
good,  and  in  the  same  instrument  a  provision  is  insti- 
tuted for  designating  the  several  agents,  who  shall  be 
the  administrators  of  the  powers  of  that  government. 
They  are  not  grantees  or  delegates  of  those  powers  ; 
they  are  merely  agents  of  the  nation,  constitutionally 
designated  for  the  exercise  of  those  powers.  In 
speaking  of  the  agents,  there  is  no  particular  impro- 
priety in  saying  that  they  are  delegated  to  the  exer- 
cise of  the  instituted  powers  of  government. 

After  premising  these  observations,  I  again  say,  we 
may  safely  admit,  that  there  is  in  the  constitution  no 
grant,  delegation  or  institution  of  privileges  to  con- 
gress, or  to  either  house  of  congress  in  express  words. 
And  yet,  sir,  I  have  no  possible  hesitation  in  saying, 
that  it  is  clearly  demonstrable  that  both  branches  of 
the  national  legislature  are  fully  invested  with  these 
privileges. 

1st.  From  the  institution  itself,  its  nature  and 
necessary  results. 

2d.  From  the  certain,  and,  I  may  say,  unavoidable 
intention,  in  framing  the  constitution. 

Sir,  the  federal  constitution  is,  in  its  nature  and 
design,  a  political  institution,  calculated  to  concen- 
trate the  views  and  interests  of  all  within  the  limits 
of  its  operation  to  one  great  national  point ;  to  bind 
the  states  in  a  national  union;  and  to  give  to  the 
whole,  if  the  expression  be  allowable,  a  national  indi- 

15 


118  LIFE    OF    NATHANIEL    CHIPMAN. 

viduality.  And,  if  this  constitution  be  not  an  ano- 
maly, a  hctcroclitc  in  kind,  it  has  its  necessary  and 
inseparable  incidents,  relations,  and  constructions. 
Moral  and  social  rights  and  duties  result  from  moral 
and  social  relations.  Such  relations  necessarily,  nay, 
I  may  say,  naturally  exist  in  every  community,  varied 
indeed,  and  modified,  by  the  state  of  society  and  by 
civil  institutions.  In  these  relations  are  found  the 
principles  of  common  justice,  exclusive  of  positive 
institutions,  as  they  are  applied  to  social  rights  and 
duties  in  each  community.  These  are  the  principles 
of  common  right,  or,  more  intelligibly  expressed,  of 
common  law,  in  every  nation.  This  is  the  true  and 
genuine  source  of  these  principles,  whether  in  Eng- 
land, in  France,  or  in  the  United  States. 

When,  sir,  in  forming  a  government,  various  parts 
are  instituted  and  organized  into  a  whole,  completing 
a  constitution,  the  institution  of  the  various  parts, 
thus  organized,  is  an  institution  of  all  the  necessary 
relations  thence  arising,  and  of  all  the  rights,  duties, 
and  powers  resulting  from  these  relations.  It  is  true 
that  these  rights,  duties,  and  powers  may,  in  their 
observance  and  exercise,  be  limited  and  modified  by 
express  provisions  in  the  institution ;  but,  if  not  so 
limited  and  modified,  they  are,  in  their  nature,  co- 
extensive with  the  subject,  scope,  and  end  of  the 
institution  itself.  And  is  there,  sir,  anything  in  the 
constitution  of  the  United  States,  —  in  its  origin,  in 
the  manner  of  instituting  its  powers,  or  in  the  sub- 
jects of  its  operations,  —  which  so  far  changes  its 
nature,  that  no  relations  are  incident  to  it?  That  no 
principles  of  rights  and  duties  arc  to  be  found  in  its 


LIFE    OF    NATHANIEL    CHIPMAN.  119 

results?  Or  are  its  incidents,  its  relations,  barren 
of  all  result,  —  affording  no  ground  for  genuine  con- 
struction ?  No,  sir ;  it  has  its  relations,  necessary 
and  inseparable  from  its  organization,  and  from  those 
relations  certain  rights  and  duties  necessarily  result. 
Nor  can  it  be  doubted  that,  organized  as  this  govern- 
ment is,  it  is  invested  with  power  competent  to  pro- 
tect and  enforce,  in  every  branch,  all  its  constitutional 
rights  and  duties.  One  of  these  rights  is  the  right 
of  self-protection.  It  is  a  right  natural  to,  and  inhe- 
rent in,  every  sensitive  being ;  from  the  lion  that 
prowls  in  the  deserts  of  Lybia,  to  the  ephemeral 
insect  that  floats  on  the  breeze  of  summer,  —  not 
more  in  nations  and  communities  instituted  by  man, 
than  in  the  gregarious  association  of  brute  animals 
and  insects.  The  community  of  the  beaver,  of  the 
bee  and  the  ant,  —  to  all,  this  right  is  the  sacred 
institution  of  nature.  It  will  not  be  denied  that  it 
exists  in  every  nation,  against  foreign  aggression  as 
well  as  against  domestic  violence.  In  the  individuals 
of  a  nation  it  exists,  and  is  permitted  in  cases  of  im- 
mediate and  urgent  necessity,  under  the  guaranty 
and  restraint  of  law.  In  subordinate  communities, 
as  in  corporations,  it  also  exists,  under  the  same 
guaranty  and  restraint  of  law ;  for  corporations  are 
considered  but  as  individuals,  as  artificial  persons, 
and  are,  like  other  individuals,  under  the  ordinary 
control  and  protection  of  law.  It  is  different  with 
the  nation,  —  it  is  different  with  the  several  branches 
of  the  government,  —  as  they  are  placed  in  a  state 
of  greater  independence  as  they  rise  higher  in  the 
community.      Not  to  instance  in  the  lower   grades 


120  LIFE    OF    NATHANIEL     CHIP  MAN. 

of  the  judiciary  magistracy,  such  is  the  situation  of 
a  court  of  law,  —  in  many  respects  an  independent 
branch  of  the  government,  —  that,  although  the  ad- 
ministrator of  the  laws,  it  cannot,  as  a  court,  be 
under  the  protection  or  control  of  the  law  in  the 
ordinary  mode.  It  cannot  be  consistent  with  its 
situation,  by  its  personal  prowess,  to  repel  insults  and 
repress  disturbances.  Hence  it  is  vested  with  the 
right,  the  power  to  punish  contempts,  —  a  power 
commensurate  with  the  end,  a  due  and  orderly  ad- 
ministration of  justice,  —  a  power,  though  not  ex- 
pressed, always  understood,  and  acknowledged  to  be 
inseparably  incident  to  the  institution.  This  right 
and  power  in  the  courts  of  law  to  punish  contempts, 
is,  in  each  branch  of  the  legislature,  the  privilege  of 
the  body,  and  the  right  to  punish  a  breach  of  these 
privileges. 

Placed  in  the  most  eminent  station  in  the  com- 
munity, each  branch  of  the  legislature  stands  on  still 
higher  ground  than  a  court  of  law.  Not  being,  as 
a  body,  under  the  protection  or  control  of  the  law  in 
the  ordinary  mode,  and  more  independent,  they  have 
no  coordinate  or  superior  power  to  which  they  may 
apply,  to  protect  them  against  insults,  against  per- 
petual disturbances  and  interruptions.  There  is, 
therefore,  vested  in  each  branch  of  the  legislature, 
this  right  and  power  of  self-protection,  —  a  right  and 
power  to  punish  a  breach  of  its  privileges ;  and,  from 
the  relations  of  the  legislature  in  the  community,  and 
the  important  ends  of  their  institution,  the  right  and 
power  arc  in  tins  respect  more  full,  more  extensive, 
and  more  independent,  than  in  any  other  department 
of  the  government. 


LIFE    OF    NATHANIEL    CHIPMAN.  121 

It  will  be  observed,  that,  in  this  government,  the 
executive  magistrate  is  under  the  control  as  well  as 
the  protection  of  the  ordinary  laws,  and,  in  the  dis- 
charge of  his  functions,  in  a  situation  different  from 
that  of  the  legislature  or  judiciary  branches,  can 
neither  need  nor  obtain  the  exercise  of  this  power. 

Then,  sir,  the  privileges  of  this  senate  derive  their 
origin  from  the  constitution  of  the  government,  from 
the  nature  and  necessary  result  of  the  institution. 

An  equally  strong,  if  not  stronger,  ground  of  argu- 
ment, is  to  be  found  in  the  necessary  and  unavoidable 
intention  in  the  formation  of  the  constitution.  In 
discussing  this  topic,  sir,  it  will  be  necessary  to  in- 
quire what  were  the  habits  of  thinking,  what  were 
the  opinions  which  have  universally  prevailed  in  this 
country,  in  civil  life  and  on  civil  institutions,  from  its 
first  colonization  down  to  the  time  of  forming  and 
adopting  the  present  constitution  of  the  United 
States,  —  habits  and  opinions  which  must  have  in- 
fluenced every  deliberation,  and  blended  with  every 
result  in  that  important  transaction.  It  will  be  neces- 
sary, likewise,  to  examine  the  constitution,  and  to 
see  whether,  in  all  its  expressions  and  allusions,  it 
does  not  clearly  evince  the  predominance  of  such 
habits  and  opinions. 

The  common  law  of  England  was,  and  is,  the 
common  law  of  the  several  states.  The  people, 
from  the  first  colonization  in  the  country,  claimed 
the  common  law  as  their  birthright,  and  its  rights 
and  privileges  as  their  unalienable  inheritance.  For 
such,  sir,  was  ever  the  strong  language  of  their 
claim.     To  repel  encroachments  on  these  rights  and 


V2°2  LIFE    OK    NATHANIEL    CH1PMAN. 

privileges,  they  drew  the  sword  against  the  country 
from  which  they  were  descended,  and  by  the  revo- 
lution, at  an  immense  expense  of  blood  and  treasure, 
secured  the  enjoyment  to  themselves,  independent 
of  the  parent  state. 

There  were,  however,  admitted,  in  this  country, 
some  necessary  exceptions,  some  necessary  variations 
from  the  common  law  of  England.  From  the  differ- 
ent situations  of  the  two  countries,  and  the  difference 
of  the  governments,  the  subjects  of  the  law  were 
not  always  the  same.  The  relations  arising  from  the 
monarchical  constitution  of  the  executive,  and  the 
hereditary  branch  of  the  legislature,  in  England,  did 
not  exist  in  this  country.  The  doctrines,  therefore, 
peculiarly  applicable  to  those  subjects,  could  not 
exist  here  in  practice,  —  certainly  not  since  the  revo- 
lution. The  same  observations  will  apply  to  reli- 
gious and  other  national  establishments,  which  have 
either  not  been  adopted,  or  have  been  discontinued 
in  the  states. 

The  different  land  tenures  in  many  of  the  states, 
excluded  in  practice  many  doctrines  of  the  common 
law  of  England,  there  being  no  subject  to  which  they 
could  apply.  Subjects  and  relations  may  have  ex- 
isted here,  which  did  not  exist  in  that  country.  Ju- 
dicial decisions  on  these  subjects,  founded  in  the 
principles  already  mentioned,  may  have  made  an  ad- 
dition to  our  common  law.  Statutes  of  the  different 
states  adapted  to  local  circumstances  and  occurrences, 
in  many  instances  produced  considerable  variations 
from  the  common  law  of  England,  and  that  in  differ 
ent  degrees. 


LIFE    OF    NATHANIEL    CHIPMAN.  123 

With  these  variations,  the  doctrines  of  the  common 
law  which,  from  the  country  of  its  origin,  and  vast  im- 
provement as  a  science,  we  call  the  common  law 
of  England,  were  indissolubly  blended  with  all  the 
thoughts,  opinions  and  actions  of  the  people  of  these 
states,  in  civil  and  social  life.  This  common  law  and 
its  principles,  they  had  constantly  in  view  in  all  their 
regulations,  establishments  and  institutions.  These 
principles,  long  established  in  practice,  they  knew,  they 
considered  them,  (where  no  deviation  was  expressed, 
or  intention  of  deviation  apparent,)  as  directing  the 
operations  and  limiting  the  extent  of  all  their  civil 
institutions.  A  constant  recurrence  to  these  known 
principles,  served  them  on  such  occasions  instead  of 
volumes. 

Such,  sir,  were  the  habits,  and  such  the  opinions  of 
those  illustrious  characters,  who,  in  the  grand  con- 
vention of  these  states,  framed  and  proposed  the  fed- 
eral constitution,  and  of  the  people  by  whom  this 
constitution  was  adopted.  Thus  circumstanced,  is 
it  to  be  supposed  that  the  members  of  that  conven- 
tion and  the  people  of  these  states  tacitly  excluded  all 
reference  to  the  common  law,  its  rules  and  reasons, 
in  the  establishment  of  this  institution,  and  all  its  va- 
rious provisions  ?  and  that,  too,  when  employed  in 
subjects,  the  common  law  doctrines  and  principles  of 
which  were  as  familiar  to  them  as  their  ordinary 
thoughts ;  nay,  which  formed  an  essential  part  of  all 
their  civil  and  political  institutions?  The  supposi- 
tion is  absurd  —  the  thing  is  wholly  incredible.  Nay 
sir,  to  any  powers  of  mind  so  formed,  it  was  utterly 
impossible. 


124  LIFE    OF    NATHANIEL    CHIPMAN. 

Again,  sir,  let  us  resort  to  the  instrument  itself,  to 
the  expressions  and  allusions  in  the  constitution.  We 
find  there  mention  of  suits  at  common  law,  and  in 
some  instances,  an  observance  of  the  rules  of  the 
common  law,  expressly  enjoined  with  a  view  of  lim- 
iting in  such  instances,  the  legislative  power  of  con- 
gress. A  judicial  power  is  instituted,  and  the  objects 
of  its  jurisdiction  generally  ascertained  ;  but  what 
questions  are  of  judicial  cognizance,  must  be  learned 
from  the  common  law,  or  must  remain  unknown. 
To  that  law  we  must  resort  for  the  knowledge  of  a 
jury,  and  of  a  trial  by  jury ;  for  the  definition  of  an 
impeachment,  and  for  the  manner  of  proceeding  on 
an  impeachment ;  for  a  definition  of  bribery,  perjury, 
felony,  and  many  other  terms  there  used  in  the  tech- 
nical sense  of  the  common  law.  Even  for  a  know- 
ledge of  the  legislative  power  of  congress  we  must 
resort  to  the  same  source  —  the  doctrines  of  the  com- 
mon law.  It  is  true,  the  constitution  has  in  particu- 
lar or  general  terms  limited  the  legislative  power  of 
congress  to  certain  subjects,  but  the  power  itself  on 
those  subjects  it  has  nowhere  defined.  It  is  nowhere 
in  that  instrument  said,  that  the  legislature  has  always 
the  power  of  repealing,  altering,  and  modifying  its 
former  laws ;  that  its  power  is  uncontrollable  within 
its  constitutional  limits.  From  a  knowledge,  how- 
ever, of  the  common  law  principles  and  practice  on 
this  subject,  these  things  are  perfectly  familiar.  But, 
sir,  it  is  unnecessary  to  multiply  observations  on  the 
common  law  principles  embraced  in  the  constitution. 
Proofs  to  our  purpose  will  be  found  in  every  article, 
in  every  section  ;  even  in  those  which  were   intro- 


LIFE    OF    NATHANIEL    CHIPMAN.  125 

duccd  for  the  purpose  of  altering  the  common  law  in 
particular  instances,  forming  exceptions  to  the  general 
rule. 

The  privileges  of  the  legislative  body  were  not  in 
this  country  a  mere  theory  of  the  common  law  of 
England,  or  of  the  law  of  nature.  It  is  a  doctrine 
which  was  known,  acknowledged  and  adopted  in 
practice  in  every  colony  before  the  revolution,  and 
since  that  period  has  justly  been  considered  essential 
to  the  functions  of  every  independent  legislature. 
Some  of  the  states  constitutions,  from  abundant  cau- 
tion, have  expressly  recognized  this  power,  while 
others  have  been  silent  on  the  subject.  But  the  legis- 
latures of  all  the  states  have  exercised  the  powers 
whenever  occasion  demanded  it.  If  there  may  now 
be  found  a  singular  instance  or  two  of  a  dereliction 
of  the  right,  or  of  the  exercise  of  the  power,  that 
cannot  bear  down  the  immense  weight  of  authority 
on  the  other  side. 

I  conclude,  therefore,  that  those  rights  which  we 
have  denominated  privileges,  and  the  power  of  pun- 
ishing for  a  violation,  the  right  and  power  of  self- 
protection,  are,  from  the  nature  of  the  institution, 
and  the  clear,  undeniable  intention  in  the  formation 
of  the  constitution,  vested  in  the  fullest  sense  in  this 
senate.  But  we  arc  told,  that  incidents  and  results 
otherwise  necessary  may  be  limited  and  excluded  by 
express  stipulation,  and  that  thus  it  is  in  the  constitu- 
tion of  the  United  States.  The  10th  article  of  the 
amendments  to  the  constitution  is  in  these  words : 
"  The  powers  not  delegated  to  the  United  States  by 
the  constitution,  nor  prohibited  by  it  to  the  people, 

16 


126  LIFE    OF    NATHANIEL    CHIPMAN. 

are  reserved  to  the  states  and  the  people  respect- 
ively." This  article,  it  is  said,  cuts  oil' every  source 
of  construction  relative  to  power.  That  although 
certain  rights  and  duties  may  result  from  certain  re- 
lations established  in  the  constitution,  yet  the  arm  of 
power  raised  to  enforce  these  rights  or  duties  in  any 
instance  not  specified  in  the  words  of  the  instrument, 
is  at  once  paralyzed  by  the  magic  of  this  formidable 
article. 

But  let  us  fairly  examine  it.  It  is  not  said  "  the 
powers  specified  in  terms  "  or  "  the  powers  not  ex- 
pressed and  defined,"  but,  "  the  powers  not  dele- 
gated," or  to  express  the  precise  meaning  in  the  true 
constitutional  sense.  The  powers  not  instituted  "  are 
reserved."  And  surely,  sir,  the  powers  instituted  in 
the  constitution,  are  delegated  in  any  sense  in  which 
the  word  is  there  used.  Sir,  in  answer  to  this  ob- 
jection, permit  me  to  repeat  a  former  observation : 
"  When,  in  forming  a  government,  various  parts  are 
formed  and  organized  into  a  whole,  completing  a 
constitution,  the  institution  of  the  various  parts  thus 
organized  is  an  institution  of  all  the  necessary  rela- 
tions thence  arising,  and  of  all  the  rights,  duties  and 
powers  resulting  from  those  relations."  Nay,  sir, 
these  results,  the  rights,  duties  and  powers,  are  the 
real  end  of  the  constitution ;  the  organization  is  but 
the  means  of  effecting  that  end  —  stripped  of  its  re- 
sults, what  remains  of  the  constitution  ?  An  organized 
body  without  a  mind  —  a  skeleton  without  life,  with- 
out efficiency.  Does,  then,  this  article  annul,  does 
it  limit  any  one  right,  duty,  or  power  fairly  delegated 
or   instituted   in   the   constitution  r     Does   it  in    any 


LIFE    OF    NATHANIEL   CHIPMAN.  127 

sense  vary  the  original,  genuine  construction  ?  It 
certainly  does  not.  It  is  mere  surplusage  ;  or,  to  say 
the  least,  was  admitted  from  abundant  caution. 

Still,  sir,  another  objection  is  urged  from  the  same 
source.  In  the  first  article  of  the  amendments,  it  is 
said,  "  Congress  shall  make  no  law  respecting  an  es- 
tablishment of  religion,  or  abridging  the  freedom  of 
speech,  or  of  the  press,  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  govern- 
ment for  a  redress  of  grievances."  The  meaning  of 
this  article,  it  is  insisted,  is,  that  congress  shall  have, 
on  no  pretence,  the  right  or  power  to  restrain,  or  in 
any  way  to  animadvert  on  the  publishing  in  speech 
or  in  print,  of  the  most  outrageous  abuse,  the  most 
violent  threats  against  the  government.  Nay,  the 
most  pressing  invitations,  the  most  public  and  daring 
exhortations  to  immediate  insurrection  and  rebellion. 
Congress  are  not,  as  in  the  same  article  relative  to  an 
establishment  of  religion,  prohibited  to  make  any  law 
on  the  subject  of  speech,  or  of  the  press ;  but  to 
make  any  law  abridging  the  freedom  of  either.  If 
we  suppose  this  prohibition  to  extend  equally  to  the 
case  now  before  us,  as  to  that  of  passing  a  law,  still 
it  opposes  no  objection.  True  freedom  or  liberty  is 
inseparable  from  the  just  and  the  right.  True  free- 
dom is  always  governed  and  limited  by  this  ancient 
and  expressive  maxim,  "  So  use  your  own  that  you  in- 
jure not  the  right  of  another."  It  is  too  monstrously 
absurd  to  maintain,  that  to  guaranty  to  any  one  the 
liberty  or  freedom  of  action,  is  to  guaranty  to  him  a 
right  to  do  wrong  —  to  commit  crimes  with  impunity. 
Yet  this  is  precisely  the  whole  force  of  the  objection. 


128  LIFE    OF    NATHANIEL    CHIP  MAN. 

Still,  it  is  urged,  that,  although  it  may  be  admitted 
that  the  senate  have  certain  privileges,  and  a  power 
to  punish  a  breach  of  those  privileges,  yet  no  pub- 
lication, in  speech  or  in  print,  respecting  the  senate 
and  their  proceedings,  however  false,  however  slan- 
derous, however  rancorous,  can  amount  to  a  breach 
of  privilege.  If  it  be  conceded  as  a  natural  right, 
and  from  the  necessity  of  the  case,  that  the  senate 
shall  have  the  power  to  punish,  as  a  breach  of  its 
privileges,  a  direct  attack  upon  them  in  session, — 
an  insolent  disturbance  of  their  deliberations,  —  yet 
it  can  extend  to  nothing  out  of  their  presence. 

This,  I  think,  however,  will,  on  a  bare  examination 
of  the  cases  which  have  occurred,  and  may  occur, 
be  found  not  to  be  just.  The  ground  is  much  too 
narrow.  The  end  for  which  these  privileges  were 
instituted  is,  to  protect  and  secure  the  senate  against 
all  those  violent  proceedings  from  without,  which 
directly,  or  by  immediate  consequence,  tend  to  out- 
rage their  persons,  interrupt  their  deliberations,  over- 
awe their  proceedings,  or  to  corrupt  their  integrity. 
Suppose  some  one  should,  out  of  the  house,  make 
a  personal  attack  on  a  member,  to  prevent  his  attend- 
ance on  his  duty  in  the  senate ;  or  should  threaten 
to  assassinate  a  member,  if  he  did  not  vote  in  a 
certain  manner  on  some  question  depending ;  or 
suppose  a  number  of  persons  assembled  at  a  little 
distance,  out  of  the  hearing  of  the  senate  in  their 
scats,  should  constantly  utter  the  most  outrageous 
threats,  with  a  view  that  information  might  reach 
and  overawe  the  members;  were  they  to  publish 
these  threats,  in  handbills  stuck  upon  the  walls  of  the 


LIFE    OF    NATHANIEL    CHIPMAN.  129 

senate-house,  or  in  a  newspaper  printed  and  daily 
circulated  in  the  place  of  their  session  ;  —  would  not 
all  these  be  equally  breaches  of  the  privileges  of  this 
house  ?  Or  is  a  threat  less  so  because  it  is  delibe- 
rately reduced  to  writing  or  published  in  print  ?  Cer- 
tainly not.  An  attempt  to  bribe  a  member,  although 
done  out  of  the  house,  is  clearly  a  breach  of  the 
privileges  of  the  house.  It  was  solemnly  so  decided 
by  the  house  of  representatives.  Another  case,  I  am 
clearly  of  opinion,  is  the  one  before  us.  Is  not  a 
false  and  scandalous  publication,  made  and  circulated 
in  the  place  of  their  session,  maliciously  misrepre- 
senting the  motives  and  proceedings  of  the  senate 
and  its  organs,  —  reducing  them,  if  without  all  power 
of  redress,  to  sit  and  deliberate  under  the  constant 
apprehension  of  the  public  contempt,  the  public  in- 
dignation, injuriously  excited  against  them  on  the 
very  subject  of  their  deliberation,  —  a  high-handed 
and  daring  breach  of  the  privileges  of  the  body  ? 
Is  it  not  an  attempt,  has  it  not  a  direct  tendency, 
to  overawe  their  proceedings  ?  Or  does  it  vary  the 
nature  of  the  attempt,  that  the  members  of  this  body 
have  firmness  enough  to  resist  the  impulse  ?  Cer- 
tainly, sir,  if  any  case  can  occur  which  may  be 
deemed  a  breach  of  the  privileges  of  this  house,  this 
is  one.  If  any  which  can  call  for  an  exercise  of  its 
powers,  this  is  eminently  one.  I  therefore  think  it 
my  duty  heartily  to  concur  in  the  resolution. 

The  following  letter  will  show  the  views  which 
he  entertained  of  the  French  revolution  while  it  was 
in  progress,  and  subsequent  events  have  shown  how 
far  these  views  were  correct : 


130  LIFE    OF    NATHANIEL    CJIIPMAN. 

Philadelphia,  February  28th,  1800. 

Dear  Sir,  —  The  mail  arrived  so  late  last  week, 
that  I  had  not  time  to  call  on  Mr.  Wollcot ;  I  will 
see  him,  and  write  to  you  the  result  by  the  next 
mail. 

It  is  difficult  to  say  what  will  be  the  effect  of  the 
late  revolution  in  France,  —  what  will  be  the  next 
revolution,  and  the  next ;  and  whether  it  will  end  in 
the  restoration  of  monarchy  to  the  ancient  line  under 
some  modifications,  or  whether  ambitious  tyrants, 
under  the  title  of  Directors  or  Consuls,  according 
to  the  caprice  of  the  moment,  will  continue  to  exer- 
cise over  the  people  of  that  country  the  most  severe 
military  despotism  for  years  to  come,  cannot  be  fore- 
seen. I  do  not  believe  that  the  policy  of  France 
will  be  materially  changed  under  the  present  regimen. 
Wo  may  expect  to  find  the  same  faithless  spirit  of 
intrigue,  the  same  restless  ambition,  pursuing  its 
object,  per  fas  et  nefas,  by  open  war  or  treacherous 
peace,  as  either  shall  appear  at  the  time  most  con- 
ducive to  the  end  they  have  in  view.  It  is  not  easy 
to  foresee  what  will  be  the  final  effect  of  all  this 
upon  the  people  of  this  country.  With  one  part  of 
the  community,  it  seems  to  be  a  link  in  the  chain 
which  leads  them  on  to  a  love  of  tyranny  and  mili- 
tary despotism,  and  to  forget,  if  not  to  hate  and 
despise,  the  rational  liberty  which  is  secured  to  all 
in  this  country,  by  the  mild  energies  of  our  own 
government.  The  infatuation  is  unaccountable  ;  — 
the  warmest  zeal  for  liberty,  with  the  most  enthu- 
siastic adoration  of  tyranny. 

The  late  revolution  in  France  will  probably  retard 
the  business  of  our  envoys ;  their  credentials  were  to 


LIFE    OF    NATHANIEL    CHIPMAN.  131 

the  Directory,  which  is  not  now  in  existence.  They 
wait  for  the  arrival  of  other  credentials  to  the  Con- 
suls ;  perhaps  it  will  be  best  to -send  a  number  in 
blank,  to  be  filled  up,  as  occasion  shall  require,  with 
the  style  of  the  executive  authority  for  the  time 
being.  I  am,  dear  sir, 

Your  sincere  friend, 

Nathaniel  Chipman. 

By  the  first  judiciary  act  organizing  the  courts  of 
the  United  States,  passed  in  September,  1789,  two 
courts,  denominated  circuit  courts,  were  to  be  holden 
annually  in  each  judicial  district,  by  any  two  justices 
of  the  supreme  court  and  the  judge  of  the  district. 
The  attendance  of  two  justices  of  the  supreme  court 
at  each  circuit  court  in  the  respective  districts,  beside 
two  sessions  of  the  supreme  court  holden  annually 
by  all  the  justices  at  the  seat  of  government,  required 
of  the  judges  such  burdensome  services,  that  they  at 
length  addressed  the  following  letter  on  the  subject 
to  President  Washington : 

Sir,  —  Your  official  connection  with  the  legisla- 
ture, and  the  consideration  that  application  from  us 
to  them  cannot  be  made  in  any  manner  so  respectful 
to  government  as  through  the  President,  induce  us 
to  request  your  attention  to  the  inclosed  representa- 
tion, and  that  you  will  be  pleased  to  lay  it  before  the 
congress. 

We  really,  sir,  find  the  burdens  laid  upon  us  so 
excessive,  that  we  cannot  forbear  representing  them 
in  strong  and  explicit  terms. 


132  LIFE    OF    NATHANIEL    CHIPMAN. 

On  extraordinary  occasions,  wc  shall  always  be 
ready,  as  good  citizens,  to  make  extraordinary  exer- 
tions. But,  while  our  country  enjoys  prosperity,  and 
nothing  occurs  to  require  or  justify  such  severities, 
we  cannot  reconcile  ourselves  to  the  idea  of  existing 
in  exile  from  our  families,  and  of  being  subject  to  a 
kind  of  life  on  which  we  cannot  reflect  without  ex- 
periencing sensations  and  emotions  more  easy  to 
conceive  than  proper  for  us  to  express. 

With  the  most  perfect  respect,  esteem,  and  attach- 
ment, we  have  the  honor  to  be,  sir, 

Your  most  obedient  and  most  humble  servants, 
(Signed)  John  Jay, 

William  Cushing, 
James  Willson, 
John  Blair, 
James  Iredell, 
Thomas  Johnson. 

The  President  of  the  United  States. 

The  President  communicated  this  letter  to  congress 
on  the  seventh  of  November,  1792.  And  it  was  un- 
doubtedly in  consequence  of  this  communication  that 
the  judiciary  act  was  revised  at  the  same  session. 
An  act  was  passed  authorizing  one  justice  of  the 
supreme  court,  with  the  district  judge,  to  hold  a  cir- 
cuit court.  In  case  of  their  being  divided  in  opinion 
on  the  final  hearing  of  a  cause,  or  on  a  plea  to  the 
jurisdiction,  the  cause  to  be  continued  to  the  succeed- 
ing term,  when  another  justice  might  attend.  This 
arrangement  afforded  some  relief  to  the  judges  of  the 
supreme  court,  but  was  found  to  produce  serious  in- 


LIFE    OF    NATHANIEL    CHIPMAN.  133 

convenience  to  the  suitors.  To  remove  these  incon- 
veniences, and  to  improve  the  judicial  system,  con- 
gress passed  an  act  on  the  13th  of  February,  1801, 
entitled  an  act  for  the  more  convenient  organization 
of  the  courts  of  the  United  States.  By  this  act,  six 
circuits  were  established ;  five  for  the  Atlantic  states, 
and  a  sixth  for  Kentucky,  Tennessee,  and  the  district 
of  Ohio.  To  each  of  the  five  first  circuits,  three 
circuit  judges  were  assigned,  and  an  annual  salary 
of  two  thousand  dollars  was  allowed  to  each  judge. 
In  the  sixth  circuit,  the  judicial  duties  were  to  be 
performed  by  a  circuit  judge,  with  the  assistance  of 
the  district  judges  of  Kentucky  and  Tennessee. 
After  the  circuit  judges  had  been  appointed  and 
commissioned,  and  after  they  had  entered  upon  the 
performance  of  their  judicial  duties,  according  to  the 
provisions  of  the  act  constituting  the  circuit  courts, 
in  the  senate  of  the  United  States,  on  the  sixth  day 
of  January,  1802,  Mr.  Breckenridge,  a  senator  from 
Kentucky,  introduced  the  following  resolution  : 

Resolved,  That  the  act  of  congress,  passed  on  the 
13th  of  February,  1801,  entitled,  an  act  for  the  more 
convenient  organization  of  the  courts  of  the  United 
States,  ought  to  be  repealed. 

In  opposition  to  this  resolution,  Nathaniel  Chipman 
delivered  the  following  speech  : 

Mr.  President,  —  After  the  length  of  time  which 
has  already  been  consumed,  and  the  abilities  which 
have  been  displayed  in  this  debate,  I  can  have  but 
little  hope  of  exhibiting  anything  new  for  the  con- 
sideration of  the  senate.     Yet,  momentous  as  I  con- 

17 


134  LIFE    OF    NATHANIEL    CHIPMAN. 

sider  the  decision  to  be  made  on  the  present  ques- 
tion, involving  consequences  powerfully  affecting  the 
most  important  principles  of  the  constitution,  I  can- 
not persuade  myself  to  give  a  mere  silent  vote  on  the 
occasion.  In  the  observations  which  I  intend  to 
make,  I  shall  endeavor,  briefly,  to  examine  some  of 
the  principal  arguments  only,  which  have  been  ofl'ered 
in  favor  of  the  resolution  on  your  table. 

The  arguments,  in  support  of  the  resolution,  have 
been  reduced  under  two  general  heads. 

1.  The  expediency  of  repealing  the  law  contem- 
plated in  the  resolution,  and 

2.  The  constitutional  power  of  congress  to  repeal 
that  law. 

To  evince  the  expediency  of  the  measure  it  has 
been  said,  that  the  system  of  1793  was  adequate  to 
all  the  purposes  of  the  national  judiciary  ;  and  that 
the  judges,  appointed  under  that  system,  were  com- 
petent to  all  the  judicial  duties  required.  Upon  this, 
sir,  I  shall  briefly  observe,  that  from  the  number  of 
terms  of  the  supreme  and  circuit  courts,  and  the 
immense  distance  to  be  travelled,  the  labor  was  un- 
reasonably great.  From  the  labors  and  fatigues  of 
riding  the  circuit,  there  could  not  be  allowed  time 
sufficient  for  those  studies,  and  for  that  calm  and  de- 
liberate attention,  which  is  so  necessary  to  the  pro- 
per discharge  of  the  duties  of  a  judge. 

At  times  it  has  happened,  that  a  supreme  judge 
could  not  attend  a  circuit  court ;  from  this  circum- 
stance the  court  in  the  district  to  which  I  have  the 
honor  to  belong,  has  more  than  once  failed  to  be 
holden.     At  other  times  the  arrival  of  the  judges  has 


LIFE    OF    NATHANIEL    CHIP.MAN.  135 

been  so  late,  that  the  proper  business  of  the  term 
could  not  be  completed.  These  failures  occasioned 
very  great  delay,  expense,  and  vexation  to  the  suitors  ; 
and  we  know  that  the  same,  or  greater  failures  and 
delays,  have  unhappily  been  experienced  in  other 
parts  of  the  United  States  ;  failures  and  delays  which 
I  cannot  attribute  to  any  criminal  negligence  of  the 
judges,  but  to  the  burthensome  duties  imposed  by 
that  system,  and  the  infirmities  and  accidents  to  which 
men  must  ever  be  exposed,  in  the  performance  of 
labors  so  arduous  and  extensive. 

To  prove  that  judges  of  the  supreme  court  must 
have  been  competent  to  all  the  duties  of  that  and  the 
circuit  courts,  the  honorable  gentleman  who  intro- 
duced the  resolution,  drew  a  comparison  from  the 
courts  and  judges  in  England.  He  has  told  us  that 
in  England  there  are  but  twelve  judges,  and  three 
principal  courts ;  that  these  courts  embrace,  in  their 
original  or  appellate  jurisdiction,  almost  the  whole 
circle  of  human  concerns ;  that  the  two  courts  of 
king's  bench  and  common  pleas,  consisting  each  of 
four  judges,  entertain  all  the  common  law  suits  of  forty 
shillings  and  upwards,  arising  among  nine  millions  of 
the  most  commercial  people  in  the  world  ;  and  that 
they  have,  moreover,  the  revision  of  the  proceedings 
of  the  subordinate  courts  in  the  kingdom,  down  to  the 
courts  of  piepoudre  ;  and  that  from  long  experience 
these  courts  have  been  found  fully  competent  to  all 
the  business  of  the  kingdom.  This  statement,  sir,  is 
by  no  means  correct.  In  England  the  house  of  lords 
is  the  supreme  court  of  appeals  in  the  last  resort,  in 
cases  both  at  law  and  in  equity.     Instead  of  three 


136  LIFE    OF    NATHANIEL    CHIPMAN. 

there  are  four  superior  courts.  The  court  of  chan- 
cery, in  which  are  decided  all  suits  and  matters  in 
equity,  including  a  very  numerous  and  important  class 
of  causes.  The  courts  of  king's  bench,  common 
pleas,  and  exchequer,  all  of  which  have  original  juris- 
diction in  civil  causes ;  and  the  king's  bench,  besides 
being  the  highest  court  of  criminal  jurisdiction,  has 
also  the  correction  and  revision  of  the  proceedings 
of  all  the  subordinate  courts,  by  writ  of  error  or  other- 
wise. The  subordinate  courts,  which  were  barely 
mentioned,  are  very  numerous.  There  are,  in  Eng- 
land, exclusive  of  Wales,  more  than  forty  counties, 
all  of  which  have  their  separate  courts  and  judges. 
Some  of  the  counties  are  regular  franchises.  Lan- 
caster, Chester  and  Durham,  have  their  separate 
courts,  both  of  law  and  equity,  which  claim  cogni- 
zance of  causes  and  parties,  within  their  respective 
jurisdictions,  even  against  the  courts  at  Westminster. 
There  are  also  an  immense  number  of  cities  and 
towns  corporate  throughout  the  kingdom,  the  courts 
and  judges  of  which,  though  more  or  less  limited  in 
their  jurisdiction,  entertain  a  vast  variety  of  civil  suits. 
There  are,  besides  these,  the  high  court  of  admiralty, 
which  has  an  exclusive  jurisdiction  in  maritime  causes; 
the  courts  of  the  two  universities,  the  prerogative 
court  of  the  Archbishop  of  Canterbury,  the  archiepis- 
copal  court  of  York,  the  diocesan  and  other  ecclesi- 
astical courts,  having  also  an  extensive  jurisdiction, 
of  a  civil  nature,  in  causes  testamentary,  and  those 
relating  to  the  distribution  of  the  goods  of  intestates. 
Wales  is  a  principality,  and  its  courts  have  exclu- 
sive original  jurisdiction  within  the  territory.     The 


LIFE    OF    NATHANIEL    CHIPMAN.  137 

great  sessions  is  the  highest  court  of  the  principality, 
from  which  a  writ  of  error  lies  in  the  court  of  king's 
bench.  The  subordinate  courts  and  judges  are 
equally  numerous,  in  proportion  to  the  territory  and 
inhabitants,  with  that  of  England.  I  omit  the  courts 
of  conscience  and  other  inferior  courts,  and  magis- 
trates almost  without  number.  From  this  view,  though 
imperfect,  it  is  evident  that  the  comparison  attempted 
by  the  honorable  gentleman,  is  by  no  means  favora- 
ble to  his  conclusion.  The  population  of  that  coun- 
try exceeds  that  of  the  United  States  by  one  third, 
perhaps  more ;  but  its  whole  extent,  exclusive  of 
Wales,  though  not  comprehended  in  the  nisi  prius 
circuits,  does  not  equal  one  of  the  circuits  of  the 
United  States,  under  the  system  of  1793 ;  and  yet 
that  country  employs,  it  is  believed,  more  courts  and 
judges,  not  only  than  the  government  of  the  United 
States,  but  than  all  the  individual  states  taken  in  addi- 
tion. I  do  not,  however,  conceive  that  any  advan- 
tage is  to  be  derived  from  the  comparison,  to  the  one 
side  or  the  other.  The  situation  of  property  and 
civil  policy,  numerous  and  complicated  rights,  intro- 
duced by  ancient  usages,  and  supported  by  laws  and 
habits,  and  by  interests  public  and  private,  may  ren- 
der a  greater  number  of  courts  and  judges,  a  more 
extensive  judicial  system,  necessary  in  one  country 
than  in  another ;  1  think  it  ought  to  be  laid  wholly 
out  of  the  question. 

It  has  been  said,  that  a  knowledge  of  the  local 
laws,  of  the  customs  and  manners  of  the  several 
states,  is  necessary  to  the  judges  of  the  supreme 
courts,  and  cannot  be  dispensed  with  on  appeals  in 


138  LIFE    OF    NATHANIEL    CHIPMAN. 

causes  arising  in  different  parts  of  the  union,  and 
that  the  judges  can  acquire  this  knowledge  in  no  way 
but  by  attending  the  circuit  courts  in  the  United 
States.  But  let  me  observe,  sir,  that  the  laws  of  the 
several  states,  which  vary  from  the  common  law,  are 
to  be  found  in  their  statute  books,  in  the  decisions  of 
their  courts  and  their  rules  of  practice  ;  for  no  cus- 
tom can  as  such  become  a  law  until  it  shall  have 
been  adopted  by  usages  and  established  by  judicial 
decisions.  All  these  may  be  made  to  appear  on  an 
appeal,  either  on  the  face  of  the  record  in  the  plead- 
ings, or  in  a  special  verdict,  or  by  proper  exemplifi- 
cation, and  will  afford  the  court  in  such  case  a  more 
correct  knowledge  than  the  recollection  of  a  judge  of 
what  he  has  caught  in  the  hurry  and  fatigue  of  a 
circuit. 

A  further  objection  has  been  urged  against  the  con- 
tinuance of  the  present  judicial  system,  from  the  addi- 
tional number  of  judges  which  it  has  introduced, 
which  it  is  said  may  prove  dangerous  to  the  liberties 
of  the  country.  An  honorable  gentleman  from  Geor- 
gia, (Mr.  Jackson,)  cited  the  opinion  of  an  author 
who  has  written  on  the  British  constitution,  that  the 
greatest  political  evil  which  could  befall  a  country, 
was  the  existence  of  large  judiciary  bodies,  and  who 
had  illustrated  his  ideas  on  the  subject  by  instancing 
the  parliaments  of  France.  The  observation  does 
not,  neither  was  it  meant  by  the  author  to  apply  to 
any  particular  number  of  courts  in  due  subordina- 
tion, each  consisting  of  a  small  and  limited  number 
of  judges,  and  employed  solely  in  proper  judicial  bu- 
siness.    But  it  applies  with  force  to  courts  composed 


LIFE    OF    NATHANIEL    CHIPMAN.  139 

of  numerous  members  and  forming  large  bodies,  who, 
in  addition  to  their  proper  judicial  functions,  are  per- 
mitted to  assume  an  authority  in  the  political  concerns 
of  the  nation. 

Such  were  the  parliaments  of  France,  the  late 
judicial  courts  of  that  country  ;  particularly  the  par- 
liament of  Paris.  The  members  of  this  body  were 
very  numerous,  and  as  it  was  necessary  that  all 
royal  edicts,  before  they  were  to  be  considered  as 
laws,  should  be  registered  in  that  court ;  they  claimed 
the  right  of  deliberating  and  deciding  on  the  regis- 
tration of  any  edict  offered  by  royal  authority,  and 
consequently  of  permitting  or  refusing  it  the  sanction 
of  a  law.  With  this  claim  that  body  certainly  be- 
came dangerous  to  the  existing  government,  and  the 
contest  which  ensued  between  them  and  the  king  on 
this  subject,  had  no  doubt  a  powerful  efTect  in  pre- 
cipitating the  late  revolution  in  that  country. 

But  there  is  nothing  in  all  this  which  can  be  applied 
to  the  courts  of  the  United  States.  Let  me  observe, 
sir,  that  there  has  always  appeared  to  me  in  the 
system  of  1793,  which  is  sought  to  be  restored,  a 
very  great  and  manifest  impropriety.  The  circuit 
courts  were  in  that  system,  though  subordinate,  in 
some  measure  blended  with  the  supreme  court,  one 
or  more  of  the  judges  of  the  supreme  court  being 
always  judges  of  the  circuit  courts.  This  rendered 
the  supreme  court  a  fluctuating  body,  some  of  the 
judges  of  the  supreme  court  being  always  excluded 
in  the  decision  of  causes  coming  by  appeal  from  the 
different  parts  of  the  United  States.  And  when  two 
supreme  judges  held  the  circuit  courts  of  the  four  re- 


140  LIFE    OF    NATHANIEL    CHIP  MAN. 

maining  judges,  who  were  to  decide  on  an  appeal, 
three  might  reverse  a  judgment  against  the  opinion  of 
the  fourth,  and  the  opinion  of  the  two  judges  in  the 
circuit  court,  unless  those  judges,  from  whose  judg- 
ment the  appeal  was  made,  gave  also  their  opinions 
in  favor  of  an  affirmance,  and  which  they  might  do, 
their  exclusion  being  indeed  only  voluntary  from  a 
high  and  just  sense  of  propriety.  This  has  always 
appeared  to  me,  to  say  no  more,  a  very  glaring  im- 
propriety in  that  system.  The  circuit  courts  under 
that  system  have  indeed  been  compared  to  the  nisi 
prius  courts  in  England,  but  the  slightest  attention 
will  convince  any  one  that  they  do  not  compare. 
The  circuit  courts  in  our  system  are  courts  of  origi- 
nal and  distinct  jurisdiction.  Not  so  the  courts  of 
nisi  prius  in  England ;  they  are  considered  as  a 
branch  of  the  superior  courts,  at  Westminster,  and 
are  held  by  a  commission  of  assize  usually  issued  to 
a  judge  of  one  of  the  superior  courts,  and  an  asso- 
ciate for  each  of  the  six  circuits  into  which  England 
is  for  that  purpose  divided.  When  a  cause  in  any  of 
the  superior  courts  is  by  the  pleadings  put  on  an  issue 
of  fact,  it  is  with  the  record  sent  to  be  tried  at  nisi 
prius  by  a  jury  of  the  proper  county  ;  instead  of  call- 
ing up  a  jury  to  try  it  at  the  bar  in  Westminster  J  Jail. 
After  the  trial  at  nisi  prius,  the  verdict  with  the  record 
i<  remitted  to  the  court,  out  of  which  it  was  sent,  and 
there  the  opinions  of  the  nisi  prius  judge,  and  the 
conduct  of  the  jury  arc;  examined,  and  considered  as 
matters  passing  in  the  same  court.  Here,  then,  the 
comparison  wholly  fails;  there  is  no  similarity  be- 
tween the  two  systems,  except  that  of  a  judge  riding 
the  circuit. 


LIFE    OF    NATHANIEL    CHIPMAN.  141 

Here,  sir,  I  shall  waive  any  further  observations  on 
this  part  of  the  subject,  and  come  to  the  great  ques- 
tion which  it  is  necessary  to  decide.  Have  congress 
the  constitutional  power  to  repeal  the  law  as  con- 
templated by  the  honorable  mover  of  this  resolution  ? 
To  abolish  the  courts  established  by  that  law,  put 
down  the  judges  and  abolish  their  salaries  ?  It  is 
true,  as  was  observed  by  the  honorable  gentleman 
from  Georgia,  (Mr.  Baldwin,)  that  the  resolution  does 
not  necessarily  involve  that  question,  because  the  re- 
pealing act,  if  the  resolution  should  be  adopted,  may 
be  so  modified  as  to  avoid  any  difficulty  relative  to 
the  salary  of  the  judges.  But  as  the  honorable  mover 
avowed  his  intention  to  be  an  abolition  of  the  courts, 
the  offices  of  the  judges,  and  their  salaries,  and  as  the 
principal  arguments  have,  in  the  course  of  this  de- 
bate, been  directed  by  that  view  of  the  subject,  I  shall 
be  permitted  to  consider  it  on  that  ground. 

One  source  of  argument  in  favor  of  the  measure 
proposed,  has  been  derived  from  the  powers  consid- 
ered as  incident  to  every  legislative  body.  It  is  said, 
that  a  power  to  repeal  all  its  legislative  acts  is  insepa- 
rably incident  to  every  sovereign  legislature  ;  that  the 
act,  the  repeal  of  which  is  contemplated,  is  a  legisla- 
tive act  of  congress,  therefore  congress  necessarily 
have  the  power  to  repeal  it ;  that  to  admit  the  con- 
trary, is  to  say  that  the  power  of  congress  at  one 
time,  is  not  equal  to  its  power  at  another  time  ;  that 
a  subsequent  congress  may  be  bound  by  the  acts  of  a 
former,  contrary  to  a  very  important  maxim  in  legis- 
lation ;  in  a  word,  that  it  is  to  make  the  creature 
greater  than  the  creator,  as  it  denies  to  congress  the 

18 


I  iJ  LIFE    OF    NATHAiMFL    CHIPMAN. 

power  over  its  own  acts  which  it  lias  passed,  and  will, 
of  course,  put  a  stop  to  all  amendments,  all  improve- 
ments of  our  laws.     The  doctrine  here  meant  to  be 
asserted  is  not  in  the  full   extent  applicable  to  the 
legislative  powers  under  our  constitution.     There  are 
acts  which  congress  are  by  that  instrument  expressly 
denied  the  power  of  passing ;  there  are  acts  which, 
whenever  passed,  congress  cannot  repeal,  or  rather 
the  elfects  of  which  they  cannot  suspend,  much  less 
can  they  destroy.      They  are  expressly  denied  the 
power  of  passing  ex  post  facto  laws ;  and  this  applies 
no  less  forcibly  to  a  repealing  act  than  to  any  other 
act  —  it  is  by  its  operation  that  the  nature  of  the  act 
is  in  this  case  determined.     Every  act,  which  in  its 
operation  attempts  to  divest  any  right  previously  ac- 
quired, whether  by  a  former  act  of  legislation,  or  by 
any  other  lawful  means  of  acquisition,  is  in  name, 
nature  and  essence,  ex  post  facto.     Indeed,  sir,  I  ap- 
prehend that  some  gentlemen  have  been  led  into  a 
mistake  on  this  subject  by  an  incautious  admission  of 
maxims  and  theories  of  legislative  powers,   in   an- 
other government,  but  which  do  not  apply  to  our 
government,  as  instituted  and  limited  by  our  consti- 
tution.    There  are,  sir,  in  every  nation,  two  kinds  of 
legislative  powers.     The  one  is  original  and  extraor- 
dinary, and  may  be  called  the  power  of  political  legis- 
lation.    It  is  by  an  associating  nation  employed  in 
forming  and  organizing  the  government,  in  disposing 
its  powers,  and  defining  or  limiting  their  exercise. 
The  other  is  derivative ;  the  ordinary  power  of  legis- 
lation, and  is  employed  in  the  civil  regulations  of  the 
community.     In  the  first  consists  the  political  sove- 


LIFE    OF    NATHANIEL    CHIPMAN.  143 

reignty  of  the  nation.  This  power  is  transcendent. 
It  is  paramount  to  all  other  powers  in  the  nation.  It 
can  create  powers,  rights,  and  duties,  and  can  abolish 
them  at  pleasure  ;  not  because  what  it  does  is  always 
wise  or  even  just,  but  because  no  other  power  in  the 
nation  can  have  a  right,  or  can  be  equal  to  control  its 
operations.  In  Great  Britain,  from  ancient  usage, 
the  consent  of  the  nation,  witnessed  by  long  and  gen- 
eral acquiescence,  both  the  ordinary  and  extraordi- 
nary powers  of  legislation  are  considered  to  be  vested 
in  the  parliament  of  the  nation.  Acting  in  this  ca- 
pacity of  political  sovereign  of  the  nation,  the  British 
parliament  can  create  rights,  and  can  destroy  existing 
rights  at  will ;  although  in  exercising  such  acts  of 
power,  they  proceed  with  great  caution,  and  are  care- 
ful to  indemnify  individuals,  whose  rights  they  may 
have  injured.  In  this  capacity  it  can,  as  it  has  done, 
new  model  the  government.  It  can  fix  and  alter  the 
duration  of  parliaments,  and  change  and  limit  the  de- 
scent of  the  crown.  Indeed,  vested  with  this  power, 
in  addition  to  the  ordinary  powers  of  legislation,  the 
figure  is  hardly  too  bold,  by  which,  when  acting  on 
subjects  within  its  authority,  it  is  said  to  be  omnipo- 
tent. Not  so  the  congress  of  the  United  States. 
They  possess  not  that  transcendent  power,  that  un- 
controllable sovereignty  of  the  nation ;  they  possess 
the  ordinary  powers  only  of  legislation,  and  these 
powers  they  derive  under  the  constitution  of  the 
United  States.  By  this  instrument  their  powers  are 
instituted,  limited,  and  defined.  This  instrument  is 
the  act  of  the  political  sovereign,  the  people  of  the 
United  States.     To  them  it  was  proposed,  and  they 


144  LIFE    OF    NATHANIEL    CHIPMAN. 

through  their  agents  empowered  for  that  purpose, 
enacted  it  the  fundamental  and  supreme  law  of  the 
national  government. 

They  have  said,  as  they  have  a  right  to  say  on  this 
subject,  congress  shall  act ;  or  that  they  may  act  at 
their  discretion.  Here  the  congressional  power  is 
limited  ;  there  is  placed  a  barrier  which  shall  not  be 
passed.  Congress,  as  I  observed,  possess  not  this 
paramount  power ;  but  in  one  mode  provided  for  alter- 
ing and  amending  the  constitution,  they  are  under 
certain  restrictions,  permitted  an  inceptive  power. 
They  have  a  right  to  originate  proposals  of  amend- 
ments, which,  when  ratified  by  three  fourths  of  the 
state  legislatures,  to  whom  the  national  sovereignty 
is,  in  this  instance,  referred,  are  adopted  into,  and 
become  a  part  of  that  instrument.  In  another  mode 
the  state  legislatures  have  the  power  of  inceptions. 
They  also  may  originate  proposals  of  amendments, 
which  congress  must  refer  to  a  convention  of  the 
people  for  their  ultimate  acceptance  and  ratification. 
In  this  instance  alone  have  the  people  of  this  coun- 
try reserved  to  themselves  a  portion  of  the  national 
sovereignty,  in  the  exercise  of  which  only  is  found  that 
voice  of  the  people,  which,  because  it  is  not  to  be 
resisted,  is  sometimes  called  the  voice  of  God.  This, 
sir,  is  the  authority  of  the  supreme  law  under  which 
we  act,  the  constitution  of  the  United  States,  an  au- 
thority indispensably  binding.  We  have  no  right, 
when  we  wish  to  carry  a  favorite  measure,  to  which 
we  find  some  barrier  opposed  by  the  constitution,  to 
prostrate  or  overleap  that  barrier.  We  have  no  right 
to  say  that  the  national  sovereign,  could  it  now  be 


LIFE    OF    NATHANIEL    CHIPMAN.  145 

consulted,  would  dispense  with  the  limitation,  would 
remove  the  barrier,  which,  in  our  present  opinion, 
stands  opposed  to  the  public  good.  No,  sir,  we  may 
not  approach  this  ground.  It  is  dangerous ;  it  is  an 
usurpation  of  the  national  sovereignty.  We  are  but 
agents  of  the  nation,  acting  under  a  limited  author- 
ity. All  our  acts  which  exceed  that  authority  are 
void. 

These  are  the  principles  to  be  applied  in  the  inves- 
tigation of  constitutional  powers.  Let  us  then  ex- 
amine the  constitution  upon  these  principles,  and 
fairly  determine  whether  we  are  permitted  the  power 
for  which  it  has  been  contended,  the  constitutional 
power  to  remove  a  judge,  by  abolishing  the  office, 
and,  consequently,  to  deprive  him  of  his  salary  ?  The 
first  provision  which  we  find  in  the  constitution  re- 
lating to  the  judicial  department,  is  in  the  second  sec- 
tion, where,  among  other  powers  enumerated,  it  is 
declared  that  congress  shall  have  power  "  to  establish 
tribunals  inferior  to  the  supreme  court."  Upon  this 
it  was  observed  by  the  honorable  gentleman  from 
Georgia,  (Mr.  Jackson,)  that  this  being  a  grant  to 
congress  of  a  legislative  power  to  establish  inferior 
courts,  necessarily  includes  the  power  to  repeal ;  that 
this  being  a  first  grant,  cannot  be  restrained  nor  taken 
away  by  any  subsequent  provision  in  the  constitution 
upon  the  same  subject ;  that  we  are  to  take  the  rule 
of  construction,  that  the  first  grant,  and  the  first 
words  of  a  grantor  in  a  deed,  shall  prevail  over  a 
subsequent  grant,  or  subsequent  words  of  a  different 
import.  Are  we,  indeed,  sir,  to  apply  in  the  con- 
struction of  the  constitution,  the  law,  the  supreme 


146  LIFE    OF    NATHANIEL   CHIPMAN. 

law  of  the  nation,  the  rules  devised  for  the  construc- 
tion of  a  deed,  a  grant,  by  which  a  few  paltry  acres 
are  transferred  from  one  individual  to  another  ?  No, 
sir,  very  different  arc  the  rules  of  construction.  The 
first  act  of  the  grantor,  but  the  last  act  of  the  legisla- 
ture shall  prevail,  or  where,  in  any  case,  is  the  power 
to  repeal  ?  Another  rule  more  universally  applica- 
ble, is,  that  you  shall  so  construe  a  law  that  every 
part  of  it,  if  possible,  may  stand  together ;  that  every 
part  may  have  its  operation.  Thus,  if  there  be  a 
general  provision  in  the  former  part  of  a  law,  and 
there  follow  a  particular  provision,  which  cannot  take 
effect  unless  some  part  of  the  former  provision  be 
set  aside,  the  latter  shall  be  considered  as  a  limita- 
tion of  the  former,  and  which  shall  be  carried  into 
effect  so  far  only  as  it  is  not  incompatible  with  the 
latter. 

In  the  third  section  of  the  constitution  is  a  further 
provision,  "  that  the  judicial  power  of  the  United 
States  shall  be  vested  in  one  supreme  court,  and  in 
such  inferior  courts  as  the  congress  may,  from  time 
to  time,  ordain  and  appoint."  The  highest  judicial 
authority  shall  not  be  divided  into  two  courts.  It 
shall,  to  use  a  ruder  phrase,  be  one  and  indivisible. 
I  consider  it  as  imperative  to  congress  to  establish, 
not  only  a  supreme  court,  but  also  to  establish  some 
courts  of  inferior  jurisdiction,  which  may  be  modified 
and  extended,  from  time  to  time,  as  experience  and 
future  expediency  shall  dictate,  so  that  it  be  without 
violence  to  any  part  of  the  constitution.  The  words 
"  as  congress  may  from  time  to  time  ordain  and  ap- 
point," were  introduced  with  intent  so  far  to  give  a 


LIFE    OF    NATHANIEL    CHIPMAN.  147 

discretion  on  the  subject.  The  power  of  erecting 
courts  is  here  taken  for  granted,  as  it  is  contained  in 
the  clause  before  cited,  from  the  second  section,  sup- 
plied by  the  general  clause  by  which  it  is  declared 
that  "  congress  shall  have  power  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into 
effect  all  the  powers  vested  by  the  constitution  in  the 
government  of  the  United  States,  or  in  any  officer 
or  department  of  the  government."  I  cannot  under- 
stand it,  for  how  is  it  possible  so  to  understand  it, 
that  the  words  "  may  ordain  and  appoint,"  in  their 
connection,  imply  also  to  abolish  ?  Certainly  it  is  not 
a  necessary  implication.  That  congress  are  required 
to  make  a  provision  of  inferior  courts,  that  the  thing 
is  not  merely  optional,  is  very  clear  from  another  part 
of  this  section,  declaring  to  what  class  the  judicial 
authority  of  the  United  States  shall  be  extended. 
(Read  that  part  of  the  section.)  Here  observe,  the 
supreme  court  has  original  jurisdiction  in  the  smaller 
number  only  of  the  cases  specified,  so  that  without  a 
provision  of  inferior  courts  there  would  be  no  pro- 
vision for  the  greater  number,  and  the  judicial  au- 
thority, instead  of  being  extended  to  all  the  cases  enu- 
merated, would,  in  fact,  be  limited  to  a  few  only. 

Let  us  now  examine  the  provision  relating  to  the 
judges,  which  is  contained  in  the  former  part  of  this 
section  ;  a  provision  intended  to  secure  to  the  judges 
a  proper  degree  of  independence.  It  is  declared  that 
"  the  judges,  both  of  the  supreme  court  and  infe- 
rior courts,  shall  hold  their  offices  during  good  beha- 
vior." The  judges  of  all  the  courts  are  placed  on  the 
same  footing.     The  expression  is  not  that  they  shall 


148  LIFE    OF    NATHANIEL    CHIPMAN. 

continue  in  office,  which  might  seem  to  be  compul- 
sory, but  shall  hold  their  offices,  implying,  at  their 
option,  during  good  behavior.  For  a  judge  may  re- 
sign, he  may  accept  a  place  incompatible  with  the 
otiice  of  judge,  as  he  may,  on  election,  accept  the 
place  of  senator  or  representative  in  congress,  by 
which  his  office  of  judge  would  be  vacated  by  his  own 
act  implying  a  resignation.  The  force  of  the  expres- 
sion clearly  is,  that  no  judge,  either  of  the  supreme  or 
inferior  courts,  so  long  as  he  continues  to  behave 
well,  can  be  removed  from  the  office,  or  the  office 
removed  from  him  by  the  act  of  any  other.  For  the 
expression  being  general,  with  one  only  exception,  in 
the  nature  of  a  proviso,  that  he  continues  to  behave 
well,  it  is  exclusive  of  every  power,  either  to  remove 
the  judge  from  the  office,  or,  as  has  been  ingeniously 
indeed  suggested,  of  removing  the  office  from  the 
judge,  causing  it  to  vanish  from  his  hold  on  any  other 
ground  or  pretence  whatever.  It  is  a  well-known 
rule,  that  the  expression  of  an  exception  in  any  pro- 
vision, excludes  every  other  exception  by  implication. 
Next  it  follows,  "  and  shall "  (the  judges  shall)  at 
stated  times  receive  for  their  services  a  compensation 
which  shall  not  be  diminished  during  their  continu- 
ance in  office."  How  long  shall  they  continue  to 
receive,  or  be  entitled  to  receive,  an  undiminished 
compensation  or  salary  ?  So  long  as  they  shall  con- 
tinue to  hold  their  respective  offices.  And  how  long 
are  they  entitled  to  hold  their  offices  ?  So  long  as 
they  shall  continue  to  behave  well.  That  is,  the  du- 
ration of  the  time  for  which  they  shall  be  entitled  to 
receive  an  undiminished  salary,  shall  be  equal  to  the 


LIFE    OF    NATHANIEL    CHIPMAN.  149 

duration  of  the  time  for  which  they  are  entitled  to 
hold  their  offices,  equal  to  the  duration  of  the  time  in 
which  they  shall  continue  to  behave  well.  What 
rarely  happens  in  subjects  of  this  nature,  the  posi- 
tion that  the  judges  cannot,  during  good  behavior, 
without  a  direct  violation  of  the  constitution,  be  de- 
prived of  their  offices,  or  their  salaries,  is  capable 
of  the  highest  proof,  not  merely  by  a  train  of  proba- 
ble and  metaphysical  reasoning,  but  by  the  clearest 
and  plainest  mathematical  demonstration.  It  is  a 
comparison  of  quantities  in  the  duration  of  time  ; 
or  shall  it.  now,  for  the  first  time,  be  said,  that  when 
one  quantity,  or  one  length  of  duration  is  equal  to 
a  second,  and  the  second  to  a  third,  that  nevertheless 
they  are  not  equal  to  each  other  ?  Have  intuitive 
truths  at  length  changed  their  nature  ?  Are  they  in 
these  times  converted  to  falsehood  ?  Have  the  clear- 
est axioms  of  ancient  science  suffered  a  revolutionary 
subversion  ?  No,  sir,  they  remain  the  same ;  they 
are  still  capable  of  assisting  us  to  the  same  infallible 
conclusions. 

The  honorable  gentleman  from  Kentucky  has  told 
us,  that  if  the  construction  against  which  he  con- 
tended had  been  contemplated  by  the  framers  of  the 
constitution,  it  would  have  been  explicitly  declared, 
that  the  judges  shall  hold  their  offices  and  salaries 
during  good  behavior,  fairly  admitting  that  a  declara- 
tion, thus  explicit,  would  have  been  conclusive  for 
the  construction  of  his  opponent.  Surely  it  will  not 
be  contended  that  the  idiom  of  the  English  laniruarre 
is  so  inflexible,  and  its  interpretation  so  precise,  that 
identical  positions  to  be  equally  clear  and  explicit, 

19 


150  LIFE    OF    NATHANIEL    CHIPMAN. 

can  be  expressed  by  identical  words  and  phrases 
only.  Had  the  expression  been,  they  should  hold 
tluir  offices  and  receive  their  salaries  during  good 
behavior,  would  not  the  meaning  have  been  the  same 
and  equally  expressive  ?  Indeed,  the  word  hold, 
though  well  applied  to  an  office,  is  not  very  properly 
applied  to  taking  the  payment  of  a  salary.  Or  had  it 
been  "  they  shall  hold  their  offices  during  good  be- 
havior and  while  they  continue  in  office,  which  is  to 
be  during  good  behavior,  they  shall  continue  to  re- 
ceive their  salaries,  which  shall  not,  during  that  time, 
be  diminished,"  it  certainly  would  have  been  a  decla- 
ration equally  explicit  with  that  suggested  by  the  gen- 
tleman. And  this,  it  has  been  clearly  and  demonstra- 
bly proved,  is  the  same  as  that  which  is  expressed  in 
the  constitution. 

I  will  here,  sir,  though  it  might,  perhaps,  have  been 
more  properly  done  before,  make  a  few  observations 
on  the  independence  of  the  judiciary.  It  has  been 
said  by  some  gentlemen,  in  effect,  that  though  the 
judges  ought  to  be  independent  of  the  executive, 
though  they  ought  not  to  hold  their  offices  or  sala- 
ries, dependent  on  the  will  of  the  president,  yet,  in  a 
government  like  ours,  there  can  be  no  reason  why 
they  should  not,  like  the  other  departments  of  the 
government,  be  dependent  on  public  opinion,  and  on 
congress,  as  properly  representing  that  opinion  ;  that 
if  the  judges  are  made  thus  independent,  if  congress 
cannot  remove  them  by  abolishing  their  offices,  or  in 
any  other  way  except  that  of  impeachment  for  mis- 
behavior, they  will  become  a  dangerous  body  in  the 
state  ;    they  may  by  their  discussions  on  the  consti- 


LIFE    OF    NATHANIEL    CHIPMAN.  151 

tutionality   of  a   law,   obstruct   the    most   important 
measures  of  government  for  the  public  good. 

Unfortunately  for  the  argument,  this  doctrine  agrees 
neither  with  the  nature  of  our  government,  which  is 
not  vested  with  the  unlimited  national  sovereignty, 
but  from  that  derives  its  powers,  nor  with  the  posi- 
tive and  solemn  declaration  of  the  constitution.  The 
constitution  is  a  system  of  powers,  limitations  and 
checks.  The  legislative  power  is  there  limited,  with 
even  more  guarded  caution  than  the  executive  ;  be- 
cause not  capable  of  a  check  by  impeachment,  and 
because  it  was  apprehended,  that  left  unlimited  and 
uncontrolled,  it  might  be  extended  to  dangerous  en- 
croachments on  the  remaining  state  powers.  But  to 
what  purpose  are  the  powers  of  congress  limited  by 
that  instrument  ?  To  what  purpose  is  it  declared  to 
be  the  supreme  law  of  the  land,  and  as  such,  binding 
on  the  courts  of  the  United  States,  and  of  the  several 
states,  if  it  may  not  be  applied  to  the  derivative  laws 
to  test  their  constitutionality  ?  Shall  it  be  only  called 
in  to  enforce  obedience  to  the  laws  of  congress,  in  op- 
position to  the  acts  of  the  several  states,  and  even  to 
their  rightful  powers !  Such  cannot  have  been  the 
intention.  But,  sir,  it  will  be  in  vain  long  to  expect 
from  the  judges,  the  firmness  and  integrity  to  oppose 
a  constitutional  decision  to  a  law,  either  of  the  na- 
tional legislature,  or  to  a  law  of  any  of  the  powerful 
states,  unless  it  should  interfere  with  a  law  of  con- 
gress, if  such  a  decision  is  to  be  made  at  the  risk  of 
office  and  salary,  of  public  character  and  the  means 
of  subsistence.  And  such  will  be  the  situation  of 
your  judges,  if  congress  can,  by  law,  or  in  any  other 


152  LIKE    OF    NATHANIEL    CHIPMAN. 

way,  except  by  way  of  impeachment,  deprive  them  of 
their  offices  and  salaries  on  any  pretence  whatever. 
For  it  will  be  remembered,  that  the  legislative  powers 
of  the  several  states,  as  well  as  those  of  congress,  are 
limited  by  the  constitution. 

For  instance,  they  are  prohibited,  as  well  as  con- 
gress, to  pass  any  bill  of  attainder,  or  ex  post  facto 
law.  The  decisions  of  the  judges  upon  such  laws,  and 
such  decision,  they  have  already  been  called  upon  to 
make,  may  raise  against  them,  even  in  congress,  the 
influence  of  the  most  powerful  states  in  the  union. 
In  such  a  situation  of  the  judges,  the  constitutional 
limitation  on  the  legislative  powers  can  be  but  a  dead 
letter.     Better  would  it  be  they  were  even  expunged. 

Thus,  sir,  it  appears  that  the  independence  of  the 
judges,  even  of  congress,  in  their  legislative  capacity, 
is  agreeable  to  the  nature  of  our  government,  to  the 
whole  tenor  as  well  as  the  express  letter  of  the  con- 
stitution. But,  sir,  at  this  late  stage  of  the  debate,  I 
will  not  further  enlarge ;  I  will  only  add,  that  upon 
these  principles,  and  with  these  views  of  the  subject, 
I  shall  give  a  hearty  negative  to  the  resolution  on 
your  table. 


CHAPTER   VIII. 

Represented  the  town  of  Tinmouth,  in  the  Legislature,  for  several 
years  —  Elected  one  of  the  Council  of  Censors,  who  proposed  Amend- 
ments to  the  Constitution,  and  published  the  "Constitutionalist"  in 
support  of  the  Amendments. 

After  the  expiration  of  his  senatorial  term  of  six 
years,  Judge  Chipman  returned  to  the  practice  of 
law,  not  having  an  office,  but  attending  to  important 
cases  in  the  different  counties.  He  represented  the 
town  of  Tinmouth  in  the  legislature,  in  the  years 
1806,  1807,  1808,  1809  and  1811.  In  March,  1813, 
he  was  elected  one  of  the  council  of  censors  —  a 
council  consisting  of  thirteen  persons  elected  by  a 
general  ticket,  at  the  expiration  of  every  seven  years, 
vested  with  certain  censorial  powers,  and  whose  duty 
it  is  to  examine  the  constitution,  and  if  they  find  it 
defective,  to  propose  such  amendments  as  they  shall 
judge  will  improve  it,  and  to  call  a  convention  to  con- 
sider such  amendments,  and  to  adopt  or  reject  each 
amendment  so  proposed. 

Nathaniel  Chipman  had  ever  considered  the  con- 
stitution to  be  defective,  and  had  a  strong  desire  to 
have  it  amended  by  the  constitution  of  the  senate,  as 
a  coordinate  branch  of  the  legislature — by  taking 
the  power  of  appointment  from  the  legislature  and 
vesting  it  in  a  board  less  liable  to  a  corrupt  and  cor- 


154  LIFE    OF    NATHANIEL    CHIPMAN. 

rupting  influence,  by  providing  for  the  appointment 
of  the  judges  of  the  supreme  court  during  good  beha- 
vior, and  by  constituting  a  court  of  chancery  distinct 
from  the  courts  of  law.  His  experience  on  the  bench 
of  the  supreme  court  led  him  to  remark,  that  for  a 
judge  at  the  same  term  to  turn  his  attention  to  the 
trial  of  issues  of  fact  and  issues  of  law,  and  to  cases 
in  chancery,  required  a  versatility  of  talent  which  fell 
to  the  lot  of  no  human  being. 

This  council  of  censors,  to  say  the  least,  comprised 
as  much  learning,  talents,  and  practical  good  sense 
as  any  one  of  the  numerous  councils  which  have  been 
elected.  They  proposed  the  amendments  to  the  con- 
stitution above-named,  and  called  a  convention  to  de- 
cide upon  their  adoption  or  rejection  agreeably  to  the 
anomalous  provision  of  our  constitution. 

In  support  of  the  proposed  amendments,  in  addi- 
tion to  their  address  to  the  people,  they  published  a 
pamphlet  entitled,  "  The  Constitutionalist,  or  Amend- 
ments of  the  Constitution,  prepared  by  the  Council 
of  Censors,  supported  by  the  Writings  and  Opinions 
of  James  Willson,  L.L.  D.,  late  one  of  the  associate 
judges  of  the  Supreme  Court  of  the  United  States, 
and  Professor  of  Law  in  the  College  of  Philadelphia ; 
also,  by  the  Writings  and  Opinions  of  other  Emi- 
nent Citizens  of  the  United  States.  With  Explana- 
tory Notes  of  modern  date.  The  only  skill  and 
knowledge  of  any  value  in  politics,  is  that  of  govern- 
ing all  by  all."  Heraditus,  in  Sir  IV.  Temples  Mis- 
eel  Ian  >/. 

The  first  amendment,  dividing  the  legislature,  by 
constituting  a  senate  as  a  coordinate  branch,  having 


LIFE    OF    NATHANIEL    CHIPMAN.  155 

in  the  year  1836  been  adopted,  there  is  in  every  state 
in  the  union,  as  well  as  in  the  government  of  the 
United  States,  a  senate  or  council  made  a  coordinate 
branch  of  the  legislature.  And  since  experience  has 
proved  the  utility,  and  even  necessity  of  such  divi- 
sion of  the  legislature,  any  further  discussion  of  the 
subject  appears  useless,  I  therefore  omit  the  said 
amendment,  and  extract  from  the  pamphlet,  the  other 
proposed  amendments,  with  the  authorities  and  argu- 
ments in  support  of  them,  as  follows  : 

Art.  14.  In  addition  to  the  powers  herein  before- 
mentioned,  and  the  ordinary  powers  and  duties  of  the 
executive,  prescribed  by  the  constitution  and  laws  of 
this  state,  the  governor  shall  nominate,  and  by  and 
with  the  advice  and  consent  of  the  senate,  appoint 
all  judges  in  the  courts  of  law  and  chancery,  judges 
of  probate,  sheriffs,  high  bailiffs,  justices  of  the  peace, 
and  major  and  brigadier  generals.  And  also,  in  like 
manner,  shall  nominate  and  appoint  all  other  officers 
for  whose  appointment  provision  shall  not  be  other- 
wise made  by  law  or  this  constitution. 

15.  The  representatives  of  the  several  counties 
shall,  at  every  session  of  the  legislature,  from  time  to 
time,  in  county  convention,  recommend  to  the  gover- 
nor suitable  persons  to  be  appointed  justices  of  the 
peace  in  the  several  towns  in  their  respective  coun- 
ties, when  such  appointments  shall  be  necessary.  And 
shall,  in  like  manner,  when  the  appointment  of  a 
sheriff  or  high  bailiff  shall  be  necessary  in  any  county, 
recommend  two  suitable  persons  for  each  or  either  of 
said  offices,  as  the  case  may  be  ;  and  the  governor 


156  LIFE    OF    NATHANIEL    CHIPMAN. 

shall  nominate  to  each  office  respectively,  one  of  the 
two  persons  recommended. 

18.  There  shall  be  established  in  this  state  a  court 
of  chancery,  distinct  from  the  courts  of  law,  with 
general  jurisdiction  in  causes  properly  determinable 
in  equity. 

19.  The  chancellor  shall  hold  his  office  on  the 
same  tenure,  and  be  removable  in  the  same  manner, 
as  is  provided  in  the  case  of  judges  of  the  supreme 
court ;  and  shall  in  like  manner  be  secured  in  his 
compensation. 

20.  The  judges  of  the  supreme  court  shall  hold 
their  offices,  respectively,  during  good  behavior  ;  they 
shall,  nevertheless,  be  removed  from  their  respective 
offices,  by  a  resolution  of  the  senate  and  house  of 
representatives,  assigning  reasons  for  such  removal ; 
and  concurred  in  by  a  majority  of  two-thirds  of  each 
house. 

The  reasons  of  our  prejudices  against  the  executive  and 
judicial  powers,  explained. 

"  Habits  contracted  before  the  late  revolution  of 
the  United  States,  operate  in  the  same  manner  since 
that  time,  though  very  material  alterations  may  have 
taken  place  in  the  objects  of  their  operations.  Be- 
fore that  period,  the  executive  and  the  judicial  pow- 
ers of  government  were  placed  neither  in  the  people, 
nor  in  those,  who  professed  to  receive  them  under  the 
authority  of  the  people.  They  were  derived  from  a 
different  and  a  foreign  source ;  they  were  regulated 
by  foreign  maxims;  they  were  directed  to  foreign 
purposes.     Need    we   be   surprised    that   they   were 


LIFE    OF    NATHANIEL    CHIPMAN.  157 

objects  of  aversion  and  distrust  ?  Need  we  be  sur- 
prised that  every  occasion  was  seized  for  lessening 
their  influence  and  weakening  their  energy  ?  On  the 
other  hand,  our  assemblies  were  chosen  by  ourselves. 
They  were  the  guardians  of  our  rights,  the  objects  of 
our  confidence,  and  the  anchor  of  our  political  hopes. 
Every  power  which  could  be  placed  in  them  was 
thought  to  be  safely  placed  ;  every  extension  of  that 
power  was  considered  as  an  extension  of  our  own 
security. 

At  the  revolution,  the  same  fond  predilection  and 
the  same  jealous  dislike  existed  and  prevailed.  The 
executive  and  the  judicial,  as  well  as  the  legislative 
authority,  was  now  the  child  of  the  people  ;  but  to 
the  two  former  the  people  behaved  like  step- mothers. 
The  legislature  was  still  discriminated  by  excessive 
partiality  ;  and  into  its  lap  every  good  and  precious 
gift  was  profusely  thrown.  Even  at  this  time  people 
can  scarcely  divest  themselves  of  those  opposite  pre- 
possessions ;  they  still  hold  the  language  which  ex- 
presses them,  though,  perhaps,  they  do  not  perceive 
the  delusive  mistake.  In  observations  on  this  sub- 
ject, we  hear  the  legislature  mentioned  as  the  people's 
representatives.  The  distinction  intimated  by  impli- 
cation, though  probably  not  avowed  upon  reflection, 
is,  that  the  executive  and  judicial  powers  are  not  con- 
nected with  the  people  by  a  relation  so  strong,  or 
near,  or  dear.  But  it  is  high  time  that  we  should 
chastise  our  prejudices ;  and  that  we  should  look 
upon  the  different  parts  of  government  with  a  just 
and  impartial  eye.  The  executive  and  judicial  pow- 
ers are  now  drawn  from  the  same  source,  are  now 
20 


158  LIFE    OF    NATHANIEL    CHIPMAN. 

animated  by  the  same  principles,  and  are  now  directed 
to  the  same  viuU  with  the  legislative  authority  ;  they 
who  execute,  and  they  who  administer  the  laws,  are 
as  much  the  servants,  and  therefore,  as  much  the 
friends  of  the  people  as  they  who  make  them.  The 
character  and  interest  and  glory  of  the  two  former 
are  as  intimately  and  as  necessarily  connected  with 
the  happiness  and  prosperity  of  the  people,  as  the 
characters,  and  interests,  and  glory  of  the  latter  are. 
Besides  the  execution  of  the  law  and  the  administra- 
tion of  justice  under  the  law,  bring  it  home  to  the  for- 
tunes, and  farms,  and  houses,  and  business  of  the 
people.  Ought  the  executive  or  the  judicial  magis- 
trates, then,  to  be  considered  as  foreigners  ?  Ought 
they  to  be  treated  with  a  chilling  indifference.  1  Wil- 
son's Works,  393,  899. 

The  Executive  Power. 

The  council  of  censors  observe,  that,  "  it  is  too  ob- 
vious to  need  proof,  that  bodies  of  men  are  unstable 
in  proportion  as  they  are  numerous ;  and  conduct 
without  due  consideration  and  regard  to  the  public 
interest  in  proportion  as  their  responsibility  is  shared 
by  numbers.  We  have,  therefore,  thought  it  advisa- 
ble to  confer  the  power  of  nomination  to  office  on 
the  governor,  who,  by  his  annual  election,  is  imme- 
diately responsible  to  the  people ;  and  the  power  of 
controlling  appointments  to  ollicc  in  pursuance  of  his 
nomination,  on  the  senate,  the  less  numerous  branch 
of  the  legislature.  The  council  hope,  by  these  means, 
to  leave  the  choice  of  the  members  of  the  legisla- 
ture more  free  from  the  influence  of  designing  men, 


LIFE    OF    NATHANIEL    CHTPMAN.  159 

who  may  often  promote  the  election  of  individuals,  in 
order  that  themselves,  in  their  turn,  may  be  pro- 
moted. And  also  to  relieve  the  legislature  itself  from 
the  corrupting  influence  of  a  too  frequent  exercise  of 
the  power  of  appointment,  as  well  as  to  save  much 
time  of  the  legislature  and  expense  to  the  state,  now 
wasted  in  the  present  mode  of  electing  officers." 
Judge  Wilson,  speaking  on  this  subject,  says  —  "the 
executive  as  well  as  the  legislative  power  ought  to  be 
restrained.  But  there  is  a  remarkable  contrast  be- 
tween the  proper  modes  of  restraining  them.  The 
legislature,  in  order  to  be  restrained,  must  be  divided. 
The  executive  power,  in  order  to  be  restrained,  should 
be  one.  Unity  in  this  department  is  at  once  a  proof 
and  an  ingredient  of  safety  and  of  energy  in  the  ope- 
rations of  government. 

"  The  restraints  on  the  legislative  authority  must, 
from  its  nature,  be  chiefly  internal ;  that  is,  they  must 
proceed  from  some  part  or  division  of  itself.  But 
the  restraints  on  the  executive  power  are  external. 
These  restraints  are  applied  with  greatest  certainty, 
and  with  greatest  efficacy,  when  the  object  of  restraint 
is  clearly  ascertained.  This  is  best  done  when  one 
object  only,  distinguished  and  responsible,  is  conspic- 
uously held  up  to  the  view  and  examination  of  the 
public. 

"  In  planning,  forming,  and  arranging  laws,  delib- 
eration is  always  becoming,  and  always  useful.  But 
in  the  active  scenes  of  government  there  are  emer- 
gencies in  which  the  man,  as,  in  other  cases,  the 
woman,  who  deliberates,  is  lost.  Secrecy  may  be 
equally  necessary  as  despatch.    But  can  either  secrecy 


160  LIFE    OF    NATHANIEL   CHIPMAN. 

or  despatch  be  expected  when,  to  every  enterprise, 
and  to  every  step  in  the  progress  of  every  enterprise, 
mutual  communication,  mutual  consultation,  and  mu- 
tual agreement,  among  men,  perhaps  of  discordant 
views,  of  discordant  tempers,  and  of  discordant  inter- 
ests, are  indispensably  necessary  ?  How  much  time 
will  be  consumed  ;  and  when  it  is  consumed,  how  little 
business  will  be  done  ?  When  the  time  is  elapsed ; 
when  the  business  is  unfinished ;  when  the  state  is  in 
distress,  perhaps,  on  the  verge  of  destruction ;  on  whom 
shall  we  fix  the  blame  ?  Whom  shall  we  select  as  the 
object  of  punishment  ?  Ruinous  dissensions  are  not 
the  only  inconveniences  resulting  from  a  numerous 
executive  body  ;  it  is  equally  liable  to  pernicious  and 
intriguing  combinations.  When  the  first  takes  place, 
the  public  business  is  not  done  at  all ;  when  the  last 
takes  place,  it  is  done  for  mean  or  malicious  pur- 
poses. 

"  The  appointment  to  office  is  an  important  part 
of  the  executive  authority.  Much  of  the  ease,  much 
of  the  reputation,  much  of  the  energy,  and  much 
of  the  safety  of  the  nation  depends  on  judicious  and 
impartial  appointments.  But  are  impartiality  and  fine 
discernment  likely  to  predominate,  in  a  numerous  ex- 
ecutive body  ?  In  proportion  to  their  own  number 
will  be  the  number  of  their  friends,  favorites,  and  de- 
pendents. An  office  is  to  be  filled.  A  person  nearly 
connected  by  some  of  the  foregoing  ties  with  one  of 
those  who  arc  to  vote  in  filling  it,  is  named  as  a  can- 
didate. His  patron  is  under  the  necessity  to  take  any 
part,  particularly  responsible  in  his  appointment.  He 
may  appear  even  cold  and  indifferent  on  the  occasion. 


LIFE    OF    NATHANIEL    CHIPMAN.  161 

But  he  possesses  an  advantage,  the  value  of  which  is 
well  understood  in  bodies  of  this  kind.  Every  mem- 
ber who  gives,  on  his  account,  a  vote  for  his  friend, 
will  expect  the  return  of  a  similar' favor  on  the  first 
convenient  opportunity.  In  this  manner  a  reciprocal 
intercourse  of  partiality,  of  interestedness,  of  favorit- 
ism, perhaps  of  venality,  is  established  ;  and  in  no  par- 
ticular instance  is  there  a  practicability  of  tracing  the 
poison  to  its  source.  Ignorant,  vicious  and  prosti- 
tuted characters  are  introduced  into  office  ;  and  some 
of  those  who  voted,  and  procured  others  to  vote  for 
them,  are  the  first  and  loudest  in  expressing  their  as- 
tonishment, that  the  door  of  admission  was  ever  opened 
to  men  of  their  infamous  description.  The  suffering 
people  are  thus  wounded  and  buffeted,  like  Homer's 
Ajax  in  the  dark,  and  have  not  even  the  melancholy 
satisfaction  of  knowing  by  whom  the  blows  are  given. 
Those  who  possess  talents  and  virtues,  which  would 
reflect  honor  on  office,  will  be  reluctant  to  appear 
as  candidates  for  appointments.  If  they  should  be 
brought  into  view,  what  weight  will  virtue,  merit  and 
talents  for  office  have,  in  a  balance  held  and  poised 
by  partiality,  intrigue  and  chicane  ? 

"  The  person  who  nominates  or  makes  appoint- 
ments to  office  should  be  known.  His  own  office, 
his  own  character,  his  own  fortune  should  be  respon- 
sible. He  should  be  alike  unfettered  and  unshel- 
tered by  counsellors.  No  constitutional  stalking-horse 
should  be  provided  for  him,  to  conceal  his  turnings 
and  windings,  when  they  are  too  dark  and  too  crook- 
ed to  be  exposed  to  public  view.  Instead  of  the  dis- 
honorable intercourse,  which  I    have    already  men- 


\G2  LIFE    OF    NATHANIEL    CHIFMANl 

tioned,  an  intercourse  of  a  very  different  kind  should  be 
established  —  an  intercourse  of  integrity  and  discern- 
ment, on  the  part  of  the  magistrate  who  appoints,  and 
of  gratitude  and  confidence  on  the  part  of  the  people, 
who  will  receive  the  benefit  from  his  appointments. 
Appointments  made  and  sanctioned  in  this  highly  re- 
spectable manner,  will,  like  a  fragrant  and  beneficent 
atmosphere,  diffuse  sweetness  and  gladness  around 
those  to  whom  they  are  given.  Modest  merit  will  be 
beckoned  to,  in  order  to  encourage  her  to  come  for- 
ward. Barefaced  impudence  and  unprincipled  in- 
trigue will  receive  repulse  and  disappointment,  de- 
servedly their  portion. 

"  If  a  contrary  conduct  should  unfortunately  be 
observed,  and  unfortunately,  a  contrary  conduct  will 
be  sometimes  observed,  it  will  be  known  by  the  citi- 
zens whose  conduct  it  is  ;  and,  if  they  are  not  seized 
with  the  only  distemper  incurable  in  a  free  govern- 
ment—  the  distemper  of  being  wanting  to  them- 
selves —  they  will,  at  the  next  election,  take  effectual 
care  that  the  person  who  has  once  shamefully  abused 
their  generous  and  unsuspecting  confidence,  shall  not 
have  it  in  his  power  to  insult  and  injure  them  a  second 
time  by  the  repetition  of  such  an  ungrateful  return. 

"  The  observations,  which  I  have  made  on  the 
appointments  to  office,  will  apply,  with  little  varia- 
tion, to  the  other  powers  and  duties  of  the  executive 
department. 

"  If  the  executive  power  of  government  is  placed 
in  the  hands  of  one  person,  who  is  to  direct  all  the 
subordinate  offices  of  that  department,  is  there  not 
reason  to  expect,  in  his  plans  and  conduct,  prompt- 


LIFE    OF    NATHANIEL    CHIPMAN.  163 

itude,  activity,  firmness,  consistency  and  energy? 
These  mark  the  proceedings  of  one  man  ;  at  least,  of 
one  man  fit  to  be  intrusted  with  the  management  of 
important  public  affairs.  May  we  not  indulge,  at  least 
in  imagination,  the  pleasing  prospect,  that  this  one 
man  —  the  choice  of  those  who  are  deeply  interested 
in  a  proper  choice  —  will  be  a  man  distinguished  for 
his  abilities  ?  Will  not  those  abilities  pervade  every 
part  of  his  administration  ?  Will  they  not  diffuse  their 
animating  influence  over  the  most  distant  corners  of 
the  nation  ?  May  we  not  further  indulge  the  pleas- 
ing imagination,  in  the  agreeable  prospect  —  in  one 
instance,  at  least,  it  is  realized  by  experience  —  that 
the  public  choice  will  fall  upon  a  man,  in  whom  dis- 
tinguishing abilities  will  be  joined,  and  sublimed  by 
distinguished  virtues  —  on  a  man,  who,  on  the  neces- 
sary foundation  of  private  character,  decent,  respect- 
ed and  dignified,  will  build  all  the  great,  and  honest, 
and  candid  qualities,  from  which  an  elevated  station 
derives  its  most  beautiful  lustre,  and  public  life  its 
most  splendid  embellishments  ? 

"  If  these  pleasing  prospects  should  unhappily  be 
blasted  by  a  preposterous  choice,  and  by  a  prepos- 
terous conduct  of  the  magistrate  chosen,  still,  at  the 
next  election,  an  effectual  remedy  can  be  applied  to 
the  mischief;  and  this  remedy  will  be  applied  effect- 
ually, unless,  as  has  been  already  intimated,  the  citi- 
zens should  be  wanting  to  themselves.  For  a  people 
wanting  to  themselves,  there  is  indeed  no  remedy  in 
the  political  dispensary.  From  their  power  there  is 
no  appeal ;  to  their  error,  there  is  no  superior  princi- 
ple of  correction."    1  Wilson's  Works,  400-404. 


164  LIFE    OF    NATHANIEL    CHIPMAN. 

Note  1. 

1.  I  will  examine  this  subject  further.  By  art.  2, 
sec.  2,  of  the  federal  constitution,  the  president  "  shall 
nominate,  and  by  and  with  the  advice  and  consent  of 
the  senate,  shall  appoint  ambassadors,  other  public 
ministers,  and  consuls ;  judges  of  the  supreme  court, 
and  all  other  officers  of  the  United  States,  whose  ap- 
pointments are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law." 

If  we  compare  this  with  the  14th  article  of  the 
amendments,  we  find  a  likeness  in  the  manner  of  ap- 
pointing officers ;  the  president  nominates,  and  by  and 
with  the  advice  and  consent  of  the  senate  appoints  ;  so 
does  the  governor.  The  president  appoints  officers 
in  every  state ;  the  governor  appoints  in  this  state. 
Would  the  president,  who  resides  in  the  city  of  Wash- 
ington, be  likely  to  know  who  are  qualified  to  be 
attorney  and  marshal  in  Vermont  district  as  well  as 
the  governor,  who  resides  here,  would  know,  who 
are  qualified  to  be  sheriffs  and  high-bailiffs,  in  the  sev- 
eral counties  ?  No.  This,  then,  is  a  reason  why  the 
governor  should  rather  be  entrusted  to  nominate 
sheriffs  and  high-bailiffs,  than  the  president  to  nomi- 
nate the  attorney  and  marshal.  The  governor's  means 
of  information  are  better,  therefore  he  would  be 
more  likely  to  nominate  suitable  persons.  If  all  our 
representatives  in  congress  should  unitedly  recom- 
mend A.  to  the  president  as  a  suitable  person  to  be 
appointed  attorney  or  marshal  of  this  district,  would 
the  president  be  obliged  to  nominate  him  ?  No.  The 
federal  constitution  does  not  require  it.     But  if  the 


LIFE    OF    NATHANIEL    CHIPMAN.  165 

representative  of  a  county,  in  county  convention,  re- 
commend A.  and  B.  as  suitable  persons  to  be  sheriff", 
in  their  county,  the  governor,  by  the  latter  part  of 
the  15th  article  of  the  amendments,  is  obliged  to 
nominate  one  of  them  to  the  senate  for  the  office. 
So  it  is  as  to  high-bailiff.  Here,  then,  we  see  restric- 
tions laid  upon  the  governor  that  are  not  upon  the 
president.  We  will  now  attend  to  the  former  part  of 
the  15th  article,  namely  :  "  The  representatives  of 
the  several  counties  shall,  at  every  session  of  the  legis- 
lature, from  time  to  time,  in  county  convention,  re- 
commend to  the  governor  suitable  persons  to  be  ap- 
pointed justices  of  the  peace  in  the  several  towns  in 
their  respective  counties,  when  such  appointments 
shall  be  necessary."  This  clause  shows  it  to  be  not 
only  the  duty  but  the  right  of  the  representatives  of 
such  county  to  recommend  to  the  governor  suitable 
persons  to  be  appointed  justices  of  the  peace.  Right 
and  obligation  are  reciprocal ;  that  is,  wherever  there 
is  a  right  in  one  or  more  persons,  there  is  a  corres- 
ponding obligation,  either  express  or  implied.  Here 
the  representatives  have  a  constitutional  right  to  re- 
commend suitable  persons  —  to  whom  ?  to  the  gover- 
nor. Now  it  is  absurd,  to  suppose  the  governor  is 
not  under  obligation  to  regard  such  recommendation 
in  making  his  nomination  to  the  senate.  It  is  not, 
however,  to  be  understood  that  the  governor,  who  is 
responsible  to  the  people,  has  no  voice  in  this  busi- 
ness. He  is  to  exercise  a  sound  discretion,  and  if  he 
find  that  the  representatives,  in  convention,  have  re- 
commended an  unsuitable  person  for  the  office,  he 
will  say  that  they  had  not  a  right  to  do  it,  and  he  is 
81 


1G(>  LIFE    OF    NATHANIEL    CIIIPMAN. 

not  obliged  to  regard  such  recommendation.  Some 
may  object,  that  these  county  conventions  will  letter 
and  shelter  the  governor  too  much  with  council- 
lors ;  that  they  will  serve  as  a  constitutional  stalking- 
horse  to  conceal  his  turnings  and  windings.  There 
is  weight  in  the  objection.  The  governor,  if  inquired 
of  why  he  appointed  such  and  such  persons,  sheriff, 
high-bailiff,  and  justices,  may  answer  that  they  were 
recommended  to  him  by  the  representatives  of  the 
county  in  county  convention  ;  still  I  believe  there  is 
a  propriety  in  having  county  conventions  to  recom- 
mend. It  is  what  we  have  been  accustomed  to  with 
this  variation  ;  that  instead  of  carrying  their  recom- 
mendations to  the  joint  committee  of  both  houses,  they 
lay  them  before  the  governor,  and  he  lays  them  be- 
fore the  senate.  If,  on  close  examination,  the  per- 
sons recommended  are  found  suitable  for  the  offices, 
they  will  be  appointed ;  otherwise,  not.  It  is  hoped 
that  the  people  will  receive  some  benefit  from  this 
variation  ;  that  the  characters  and  qualifications  of  per- 
sons recommended  by  conventions  will  be  more  thor- 
oughly inquired  into  by  the  governor  and  senate  than 
they  have  heretofore  been  by  the  joint  committee  of 
both  houses.  Even  if  an  unsuitable  person  should  be 
recommended  to  the  governor,  and  the  governor 
should  nominate  him  to  the  senate,  it  is  expected 
that  the  senate,  if  they  know  the  person  to  be  unsuit- 
able, will  withhold  advice  and  consent  to  his  appoint- 
ment to  office.  With  so  much  caution  —  and  there 
cannot  be  too  much  caution  —  persons  who  cannot 
read  and  write,  and  persons  of  bad  moral  character, 
will  not  likely  be   appointed  justices  of  the  peace  ; 


LIFE    OF    NATHANIEL    CHIPMAN.  167 

some  such  have  heretofore  been  appointed  (incau- 
tiously) by  the  joint  committee  of  both  houses. 

Again,  if  a  known  bankrupt  should  induce  the 
representatives  of  his  county  to  agree  on  him  for  a 
sheriff,  and,  in  county  convention,  they  should  recom- 
mend him  to  the  governor  for  the  office,  the  governor 
would  not  be  likely  to  nominate  him  to  the  senate,  or 
if  he  did,  the  senate  would  not  be  likely  to  give  their 
advice,  and  consent  to  his  appointment.  But,  how 
often  such  persons  have  been  appointed  sheriffs  by  the 
joint  committee  of  both  houses,  not  only  to  the  dam- 
age of  individuals,  but  to  the  injury  of  the  state. 

If  the  representatives  of  each  county,  in  county 
convention,  can  recommend  suitable  persons  to  be 
appointed  sheriff,  high-bailiff,  and  justices  of  the 
peace  in  their  respective  counties,  and  this  recom- 
mendation is  obligatory  on  the  governor  to  nominate 
them  to  the  senate,  why  need  the  representatives 
complain  because  the  appointment  does  not  ulti- 
mately depend  upon  them  ?  If  they  can  have  the 
very  men  they  recommend,  what  more  do  they  want  ? 
Do  they  wish  unsuitable  persons  to  be  appointed,  in 
case  they  should  happen  to  recommend  some  to  the 
governor  ? 

If  the  governor  and  senate  are  as  much  the  ser- 
vants, therefore,  as  much  the  friends  of  the  people  as 
the  representatives  are,  why  should  the  people  be  un- 
willing to  trust  them  to  give  a  final  vote  in  the  choice 
of  their  officers  ?  It  is  said  by  Judge  Wilson,  that 
"  the  character  and  interest  and  glory  of  the  governor 
and  senate  are  as  intimately  and  necessarily  con- 
nected with  the  happiness  and  prosperity  of  the  peo- 


168  LIFE    OF   NATHANIEL    CHIPMAN. 

pie  as  the  character,  and  interest,  and  glory  of  the 
representatives  are."  Why  then  not  trust  them  as 
soon  ?  Is  it  because  they  are  fewer  in  number  than 
the  representatives  ?  Do  wisdom  and  patriotism  con- 
sist in  numbers?  If  so,  then  double  the  number  of 
your  representatives,  and  you  double  their  wisdom 
and  patriotism. 

This  would  be  a  fortunate  thing  for  the  people  — 
more  wisdom  and  more  patriotism  in  that  branch 
would  do  us  no  harm.  But  wisdom  and  patriotism 
do  not  consist  in  numbers,  and  it  is  hoped  that  as 
much  of  these  will  fall  to  the  share  of  the  governor 
and  senate  as  the  other  branch  of  the  legislature,  and 
that  they  will  be  more  competent  to  appoint  suitable 
persons  to  fill  the  aforesaid  offices. 

As  to  the  more  important  offices,  which  do  not  con- 
cern one  county  more  than  another,  it  seems  highly 
proper  that  the  governor  should  nominate  suitable 
persons  to  fill  them. 

Note  2. 

The  provision  contained  in  the  14th  article  of  the 
amendments,  which  empowers  the  governor  to  nomi- 
nate, and  by  and  with  the  advice  and  consent  of  the 
senate,  appoint  all  judicial  officers,  &c,  is  founded 
upon  principles  which  are  unquestionable  in  their  na- 
ture, and  in  strict  conformity  to  the  common  sense 
and  reason  of  mankind.  Yet  it  is  to  be  feared,  that 
passion  may  triumph  over  reason,  and  good  sense  be 
forced  to  yield  to  inveterate  prejudice.  We  know 
that  habits,  once  formed  and  become  familiar,  are 
not  easily  laid   aside.    It   may  be  difficult   to   per- 


LIFE    OF    NATHANIEL    CHIPMAN.  169 

suade  those  who  have  been,  or  expect  to  be,  mem- 
bers of  the  house  of  representatives,  to  transfer  from 
that  body  a  power,  to  the  use  of  which  its  members 
have  been  so  long  accustomed,  and  which  they  have 
found  to  be,  in  their  hands,  such  efficient  means  of 
self-aggrandizement.  We  have  no  hesitation  in  de- 
claring the  opinion,  that  the  power  of  appointment  to 
office  could  not  have  been  placed  in  more  improper 
hands  than  it  is  by  the  present  constitution.  To  the 
existing  mode  it  would  indeed  be  preferred,  much 
preferred,  that  the  power  of  appointment  of  the  judges 
of  the  supreme  court  should  be  exercised  by  the  peo- 
ple at  large,  and  of  the  judges  of  the  county  court 
by  the  people  of  the  several  counties.  This  method 
would,  at  least,  give  an  opportunity  to  examine  the 
characters  and  canvass  the  qualifications  of  the  sev- 
eral candidates  for  these  offices,  and,  if  the  people 
would  be  governed  in  their  choice  by  party  views  and 
prejudices,  they  would,  nevertheless,  be  free  from  the 
combined  influence  of  corrupt  and  selfish  motives. 
As  to  the  degree  of  responsibility  the  people  might 
feel  for  the  fidelity  and  ability  of  these  officers,  we 
admit  it  would  probably  not  be  greater,  nor  could  it 
be  less,  than  what  is  now  felt  by  the  members  of  the 
house  of  representatives. 

Judicial  Power. 

The  council  of  censors  observe,  in  their  address, 
that  "  the  frequent  election  of  the  judges  of  the  courts 
of  law  and  chancery,  it  is  believed,  must  unavoidably 
have  a  tendency  to  make  them  feel  dependent  on 
their  electors,  and  other  influential  members  of  so- 


170  LIFE    OF    NATHANIEL    CHIP  MAN. 

ciety ;  and  to  prevent  the  unbiased  exercise  of  their 
opinions  in  the  decision  of  causes  between  men  high 
in  office  or  influence,  and  the  members  of  the  lower 
and  more  ordinary  classes  of  society,  and  thereby  cor- 
rupt the  fountain  as  well  as  the  streams  of  justice. 
The   members  of  the  council,  therefore,  thought  it 
their  duty  to  devise  and  recommend  an  amendment  of 
the  constitution,  rendering  the  judiciary  so  far  inde- 
pendent as  to  place  them  above  the  influence  of  pop- 
ular party  or  personal  motives ;  and  yet  liable  to  re- 
moval for  reasonable  objections,  which  do  not  amount 
to    cause   of  impeachment.     They  have,   therefore, 
proposed  so  to  amend  the  constitution  as  to  have 
them  appointed  during  good  behavior,  yet  removable 
by  the  resolution  of  both  houses  of  the  legislature, 
passed  by  two-thirds  of  the  members  of  each,  as  be- 
ing the  best  medium  between  absolute  independence 
and  an  entire  dependence  on  the  representatives  of 
the  people.     The  ordinary  judges  of  the   courts  of 
common  jurisdiction,  it  has  been  thought  expedient, 
should  hold  their  offices  for  the  term  of  five  years, 
removable  in  the  same  manner.     Chancery  powers 
cannot,  from  their  nature,  be  accurately  defined  or 
limited,   and  are,  therefore,   in  some  measure  dan- 
gerous ;  yet,  when  reduced  to  system  by  practice  and 
prudence,   highly   useful,    important   and   necessary. 
The  inconvenience  of  the  exercise  of  these  powers 
by  the  judges  of  a  court  of  common  law  jurisdiction, 
has  been  unhappily  experienced  by  the  suitors  in  our 
courts.     Great  delay  in  causes  in  chancery  have  been 
occasioned  by  want  of  time,  and  hurry  of  business  on 
the  law  side  of  the  court.    Necessary  rules  and  orders 


LIFE    OF   NATHANIEL    CHIPMAN.  171 

for  bringing  causes  to  a  hearing  and  decision  cannot 
be  adopted  and  maintained  in  our  present  system, 
and  the  unavoidable  precipitancy  in  the  proceedings, 
forbids  the  expectation  of  the  attainment  of  correct 
decisions  by  the  proper  discussion  of  the  parties  and 
the  deliberation  of  the  court.  The  council  has,  there- 
fore, recommended  the  establishment  of  a  court,  with 
chancery  powers,  distinct  from  the  courts  of  law. 

In  reasoning  upon  this  subject,  Judge  Wilson  says: 

"  The  third  great  division  of  the  powers  of  govern- 
ment is  the  judicial  authority.  It  is  sometimes  con- 
sidered as  a  branch  of  the  executive  power,  but  inac- 
curately. When  the  decisions  of  courts  of  justice  are 
made,  they  must,  it  is  true,  be  executed  ;  but  the 
power  of  executing  them  is  ministerial,  not  judicial. 
The  judicial  authority  consists  in  applying,  according 
to  the  principles  of  right  and  justice,  the  constitution 
and  laws  to  facts  and  transactions  in  cases  in  which 
the  manner  or  principles  of  this  application  are  dis- 
puted by  the  parties  interested  in  them. 

"  The  very  existence  of  a  dispute  is  presumptive 
evidence,  that  the  application  is  not  altogether  with- 
out intricacy  or  difficulty.  When  intricacy  or  diffi- 
culty takes  place  in  the  application,  it  cannot  be  pro- 
perly made  without  the  possession  of  skill  in  the 
science  of  jurisprudence,  and  the  most  unbiased  be- 
havior in  the  exercise  of  that  skill.  Clear  heads, 
therefore,  and  honest  hearts  are  essential  to  good 
judges. 

"  As  all  controversies  in  the  community  respecting 
life,  liberty,  reputation  and  property  must  be  influ- 
enced by  their  judgments,  and  as  their  judgments 


172  LIFE    OF    NATHANIEL    CHIPMAN. 

ought  to  be  calculated  not  only  to  do  justice,  but  also 
to  give  general  satisfaction,  to  inspire  general  confi- 
dence, and  to  take  even  from  disappointed  suitors  — 
for  in  every  cause  disappointment  must  fall  on  one 
side  —  the  slightest  pretence  of  complaint ;  they 
ought  to  be  placed  in  such  a  situation  as  not  only  to 
be,  but  likewise  to  appear  superior  to  every  extrinsic 
circumstance,  which  can  be  supposed  to  have  the 
smallest  operation  upon  their  understandings  or  their 
inclinations.  In  their  salaries,  and  in  their  offices, 
they  ought  to  be  completely  independent ;  in  other 
words,  they  should  be  removed  from  the  most  distant 
apprehension  of  being  effected,  in  their  judicial  char- 
acter and  capacity,  by  anything  except  their  own  be- 
havior and  its  consequences. 

"  We  are,"  says  a  very  sensible  writer  on  political 
subjects,  "  to  look  upon  all  the  vast  apparatus  of 
government  as  having  ultimately  no  other  object  or 
purpose  but  the  distribution  of  justice.  All  men  are 
sensible  of  the  necessity  of  justice  to  maintain  peace 
and  order,  and  all  men  are  sensible  of  the  necessity 
of  peace  and  order  for  the  maintenance  of  society."1 
"  The  pure,  and  wise,  and  equal  administration  of  the 
laws,"  says  Mr.  Paley,2  "  forms  the  first  end  and  bless- 
ing of  social  union."  But  how  can  society  be  main- 
tained ;  how  can  a  state  expect  to  enjoy  peace  and 
order  unless  the  administration  of  justice  is  able  and 
impartial  ?  Can  such  an  administration  be  expected, 
unless  the  judges  can  maintain  dignified  and  inde- 
pendent characters  ?     Can  dignity  and  independence 

1  Hume's  Essay,  35.  *  2  Paley,  285. 


LIFE    OF    NATHANIEL    CHIPMAN.  173 

be  expected  from  judges  who  are  liable  to  be  tossed 
about  by  every  veering  gale  of  politics,  and  who  can 
be  secured  from  destruction  only  by  dexterously  swim- 
ming along  with  every  successive  tide  of  party  ?  Is 
there  not  reason  to  fear,  that  in  such  a  situation  the 
decisions  of  courts  would  cease  to  be  the  voice  of 
law  and  justice,  and  would  become  the  echo  of  fac- 
tion and  violence  ? 

"  This  is  a  subject  that  most  intimately  concerns 
every  one  who  sets  the  least  value  upon  his  own 
safety,  or  that  of  his  posterity.  Our  fortunes,  our 
lives,  our  reputations,  and  our  liberties  are  all  liable 
to  be  affected  by  the  judgments  of  the  courts.  How 
distressing  and  melancholy  must  the  reflection  be,  that 
while  judges  hold  their  salaries  only  at  pleasure,  and 
their  commissions  only  for  the  term  of  a  few  years, 
our  liberties,  our  fortunes,  our  reputations  and  our 
lives  may  be  sacrificed  to  a  party,  though  we  have 
done  nothing  to  forfeit  them  to  the  law."  1  Wilsorfs 
Works,  405-407. 

I  might  here,  with  great  propriety,  quote  from  the 
book  called  The  Federalist,  written  by  Messrs.  Madi- 
son, Hamilton  and  Jay,  their  sentiments  respecting 
independency  in  the  judiciary,  were  it  not  for  swelling 
this  work  beyond  its  intended  size.  They  wrote  after 
the  convention  had  recommended  the  federal  consti- 
tution, and  before  its  adoption,  in  favor  of  the  princi- 
ples contained  in  that  instrument.  A  single  passage 
will  be  enough  to  show  their  sentiments  on  this  point. 
They  say,  "  Upon  the  whole,  there  can  be  no  room 
to  doubt  that  the  convention  acted  wisely  in  copying 
from  the  models  of  those   constitutions  which  have 


174  LIFE    OF    NATHANIEL    CHIFMAN. 

established  good  behavior  as  the  tenure  of  judicial 
ofrices,  in  point  of  duration  ;  and,  that  so  far  from 
being  blamable  on  this  account,  their  plan  would 
have  been  inexcusably  defective,  if  it  had  wanted  this 
important  feature  of  good  government." 

We  learn  Mr.  Jefferson's  sentiments  on  this  sub- 
ject by  looking  into  his  proposed  constitution  for  Vir- 
ginia. There  we  find  him  to  Bay,  that  "  the  judges 
of  the  high  court  of  chancery,  general  court"  of 
common  law,  "  and  courts  of  admiralty,  should  be  ap- 
pointed, &c.  and  to  hold  their  ofrices  during  good 
behavior."  1  He  would  have  them  removable  only  by 
impeachment. 

Note  3. 

I  now  propose  to  examine  the  constitutions  of  the 
several  states  in  relation  to  the  judiciary  department. 
And  this  examination  will,  I  think,  not  only  remove 
all  scruples  as  to  the  republicanism  of  an  inde- 
pendent judiciary,  but  also  afford  some  testimony  in 
favor  of  its  establishment  in  Vermont.  The  institu- 
tions of  other  states,  approved  by  many  years  experi- 
ence, by  all  political  parties,  are  surely  entitled  to  some 
consideration.  We  cannot  doubt  but  that  the  framers 
of  these  constitutions  had  solely  the  security  of  the 
rights  of  the  people  in  view,  not  the  aggrandizement 
of  any  person  or  party.  That  there  should  be  differ- 
ences of  opinion,  on  various  points,  is  not  extraordi- 
nary. But  that  all  the  states  which  have  formed 
constitutions,   should  have  so  nearly   agreed  on  the 

1  Jctferson's  Notes,  299. 


LIFE    OF    NATHANIEL    CHIPMAN,  175 

subject  of  the  independence  of  the  judiciary,  would 
certainly  be  extraordinary,  if  there  was  nothing  in 
its  principle  favorable  to  the  impartial  administration 
of  justice,  and  to  the  security  of  the  rights  of  the 
people. 

New  Hampshire.  —  "All  judicial  officers  duly  ap- 
pointed, commissioned,  and  sworn,  shall  hold  their 
offices  during  good  behavior,  excepting  those  con- 
cerning whom  there  is  different  provision  made  in 
this  constitution.  Provided,  nevertheless,  the  gover- 
nor, with  consent  of  council,  may  remove  them  upon 
the  address  of  both  houses  of  the  legislature.  No 
person  shall  hold  the  office  of  judge  of  any  court  after 
he  has  attained  the  age  of  seventy  years."  (Adopted 
1792.) 

Massachusetts.  —  Chap.  3,  art.  1.  "  All  judicial  offi- 
cers, duly  appointed,  commissioned  and  sworn,  shall 
hold  their  offices  during  good  behavior,  excepting 
such  concerning  whom  there  is  different  provision 
made  in  this  constitution.  Provided,  nevertheless, 
the  governor,  with  the  consent  of  the  council,  may 
remove  them  upon  the  address  of  both  houses  of  the 
legislature."     (Adopted  1730.) 

Rhode  Island.  —  This  state  has  formed  no  consti- 
tution. The  charter  of  Charles  II.  forms  the  basis  of 
its  government.  Under  that  their  judges  are  annually 
elected,  and  their  courts  are  such  as  might  be  ex- 
pected. 

Connecticut.  —  This  state  has  formed  no  constitu- 
tion. Their  judges,  though  chosen  annually,  are,  in 
practice,  appointed  during  good  behavior.  In  this 
state   there   has   been   no   change  of  parties.      But 


176  LIFE    OF    NATHANIEL    CHIP  MAN. 

should  parties  fluctuate  as  in  Rhode  Island,  the  same 
fate  would  probably  await  their  judges,  unless  the 
spirit  of  party  should  be  contracted  by  the  steady 
habits  peculiar  to  the  state  of  Connecticut.  The  fol- 
lowing is  the  third  section  of  the  fifth  article  of  the 
constitution  of  Connecticut,  adopted  in  the  year  1818. 

The  judges  of  the  supreme  court  of  errors,  of  the 
superior  and  inferior  courts,  and  all  justices  of  the 
peace,  shall  be  appointed  by  the  general  assembly,  in 
such  manner  as  shall  by  law  be  prescribed.  The 
judges  of  the  supreme  court  and  of  the  superior  court 
shall  hold  their  offices  during  good  behavior ;  but  may 
be  removed  by  impeachment ;  and  the  governor  shall 
also  remove  them  on  the  address  of  two-thirds  of  the 
members  of  each  house  of  the  general  assembly. 
All  other  judges  and  justices  of  the  peace  shall  be 
appointed  annually.  No  judge  or  justice  shall  hold 
his  office  after  he  shall  arrive  at  the  age  of  seventy 
years. 

New  York Art.  24  (ordains)  "That  the  chan- 
cellor, the  judges  of  the  supreme  court,  and  first  judge 
of  the  county  court  in  every  county,  shall  hold  their 
offices  during  good  behavior,  or  until  they  shall 
have  respectively  attained  the  age  of  sixty  years." 
They  are  removable  only  by  impeachment.  Adopted 
1777. 

New  Jersey.  —  Art.  12.  "  The  judges  of  the  su- 
preme court  shall  continue  in  office  for  seven  years ; 
the  judges  of  the  inferior  court  of  common  pleas,  &c. 
shall  continue  in  office  for  five  years."  They  are  re- 
movable only  by  impeachment.     Adopted  1776. 

Pennsylvania.  —  Art.  5,  sec.  2.    "  The  judges  of  the 


LIFE    OF   NATHANIEL    CHIPMAN.  177 

supreme  court,  and  of  the  several  courts  of  common 
pleas,  shall  hold  their  offices  during  good  behavior. 
But  for  any  reasonable  cause,  which  shall  not  be 
sufficient  ground  for  impeachment,  the  governor  may 
remove  any  of  them  on  the  address  of  two-thirds  of 
each  branch  of  the  legislature.     Adopted  1790. 

Delaware.  —  Art.  6,  sec.  2.  "  The  chancellor  and 
judges  of  the  supreme  court  and  the  courts  of  com- 
mon pleas,  shall  hold  their  offices  during  good  beha- 
vior. But  for  a  reasonable  cause,  which  shall  not  be 
a  sufficient  ground  for  impeachment,  the  governor 
may,  in  his  discretion,  remove  any  of  them,  on  the 
address  of  two-thirds  of  all  the  members  of  each 
branch  of  the  legislature."     Adopted  1792. 

Maryland.  —  Art.  49.  "  The  chancellor,  all  judges, 
&c.  shall  hold  their  commissions  during  good  beha- 
vior, removable  only  on  conviction  in  a  court  of  law." 
Adopted  1776. 

Virginia.  —  "...  Judges  of  the  supreme  court  of 
appeals,  judges  in  chancery,  judges  of  admiralty,  &c. 
to  be  commissioned  by  the  government,  and  continue 
in  office  during  good  behavior,  removable  only  by  im- 
peachment, except  in  a  case  of  incapacity."  Adopted 
1776. 

North  Carolina.  —  Art.  13.  "...  Judges  of  the  su- 
preme courts  of  law  and  equity,  judges  of  admiralty, 
&c.  to  be  commissioned,  &c.  and  hold  their  offices 
during  good  behavior,  removable  only  by  impeach- 
ment."    Adopted  1776. 

South  Carolina.  —  Art.  3,  sec.  1.  "  The  judiciary 
power  shall  be  vested  in  such  superior  and  inferior 
courts  of  law  and  equity,  as  the  legislature  shall,  from 


178  LIFE    OF    NATHANIEL   CHIPMAN. 

time  to  time,  direct  and  establish.  The  judges  of 
eacli  shall  hold  their  commissions  during  good  beha- 
vior,"  removable  only  by  impeachment.  Art.  5,  sec. 
1.  ''But  no  impeachment  shall  be  made  unless  with 
the  concurrence  of  two-thirds  of  the  house  of  repre- 
sentatives.    Adopted  1790. 

Georgia.  —  Art.  3,  sec.  1.  "  The  judges  of  the  su- 
perior court  shall  be  elected  for  the  term  of  three 
years,  removable  by  the  governor  on  the  address  of 
two  thirds  of  both  houses,  or  by  impeachment  and 
conviction  thereon."  Sec.  4.  "  Justices  of  the  infe- 
rior courts  shall  be  appointed,  &c.  and  hold  their 
commission  during  good  behavior,  or  as  long  as  they 
respectively  reside  in  the  county  for  which  they  shall 
be  appointed,"  unless  removed  as  in  section  first. 
Adopted  1798. 

Tennessee.  —  Art.  5.  "...  Shall  appoint  judges  of 
the  several  courts  of  law  and  equity,  &:c.  who  shall 
hold  their  respective  offices  during  good  behavior," 
removable  only  by  impeachment.     Adopted  1796. 

Kentucky.  —  Art.  4.  "  The  judges  both  of  the  su- 
preme and  inferior  courts,  shall  hold  their  offices 
during  good  behavior ;  but  for  any  reasonable  cause, 
which  shall  not  be  sufficient  ground  for  impeachment, 
the  governor  shall  remove  any  of  them  on  the  address 
of  two-thirds  of  each  house  of  the  general  assembly." 
Adopted  1799. 

Ohio.  —  Sec.  7.  "  The  judges  of  the  supreme  court, 
the  presidents  and  the  associate  judges  of  the  courts 
of  common  pleas,  shall  be  appointed,  &c.  and  shall 
hold  their  offices  for  the  term  of  seven  years,  if  so 
long  they  behave  well,"  removable  only  by  impeach- 
ment.    Adopted  1802. 


LIFE    OF    NATHANIEL    CHIPMAN.  179 

Louisiana.  —  The  following  is  the  5th  section  of 
the  4th  article  in  the  constitution  of  Louisiana  :  "The 
judges,  both  of  the  supreme  and  inferior  courts,  shall 
hold  their  offices  during  good  behavior ;  but,  for  any 
reasonable  cause,  which  shall  not  be  sufficient  ground 
for  impeachment,  the  governor  shall  remove  any  of 
them  on  the  address  of  three-fourths  of  each  house 
of  the  general  assembly.  Provided,  however,  that  the 
cause  or  causes  for  which  such  removal  may  be  re- 
quired, shall  be  stated  at  length  in  the  address,  and 
inserted  on  the  journal  of  each  house." 

On  a  review  of  the  constitutions  of  the  several 
states  it  appears,  that  no  state  which  has  formed  a 
constitution,  except  Vermont,  elects  its  judges  annu- 
ally. 

That  only  two  states  elect  their  judges  annually, 
namely,  Rhode  Island  and  Connecticut. 

That  only  three  states  elect  their  judges  for  a  term 
of  years,  namely,  New  Jersey,  for  seven  years ;  Geor- 
gia (its  supreme  court)  for  three  years,  and  Ohio  for 
seven  years. 

That  eleven  states  elect  their  judges  during  good 
behavior,  namely,  New  Hampshire,  Massachusetts, 
New  York,  Pennsylvania,  North  Carolina,  South 
Carolina,  Tennessee,  Kentucky,  Delaware,  Mary- 
land and  Virginia. 

That  of  these,  only  two  limit  the  duration  of  office 
by  age,  namely,  New  Hampshire  to  seventy,  and 
New  York  to  sixty. 

That  in  no  state  are  the  judges  removable  by  the 
address  of  a  majority  of  both  houses. 

That  in  two  states  the  governor,  with  the  consent  of 


180  LIFE    OF    NATHANIEL    CHIPMAN. 

council,  may  remove  upon  the  address  of  a  majority, 
namely,  .Massachusetts  and  New  Hampshire. 

That  in  three  states  the  governor  may  remove  on 
the  address  of  two-thirds  of  both  houses,  namely,  Penn- 
sylvania, Delaware  and  Georgia. 

That  in  one  state  the  governor  shall  remove  the 
judges  on  the  address  of  two-thirds  of  both  houses, 
namely,  Kentucky. 

That  in  five  states  the  judges  are  removable  only 
on  impeachment,  Sec.  New  Jersey,  Virginia  (except 
for  incapacity,)  North  Carolina,  South  Carolina  and 
Tennessee. 

That  in  one  state  they  are  removable  only  on  con- 
viction in  a  court  of  law,  namely,  Maryland.  Spooner's 
Vermont  Journal. 

Note  4. 

Judge  Jeffries.  —  He  held  his  office  durante  bene 
jjlacito,  of  the  crown.  "  When  his  master  abdi- 
cated the  throne  his  own  security  lay  only  in  flight. 
From  the  law,  the  law's  worst  assassin  could  expect 
no  protection.  That  he  might  escape  unknown,  he 
shaved  his  eye-brows,  put  on  a  seaman's  habit,  and 
all  alone  made  the  best  of  his  way  to  Wapping,  with 
a  design  to  take  shipping  for  a  foreign  country.  But 
his  countenance  could  not  remain  undiscovered  under 
all  this  disguise  ;  a  man,  whom,  upon  a  trial,  he  had 
frightened  almost  into  convulsions,  no  sooner  got 
glimpse  of  it,  than  in  a  moment  he  recollected  all  the 
terrors  he  had  formerly  felt.  Notice  was  instantly 
given  to  the  mob,  who  rushed  in  upon  him  like  a  herd 
of  wolves.    He  was  goaded  on  to  the  lord  mayor  ;  the 


LIFE    OF    NATHANIEL    CHIPMAN.  181 

lord  mayor,  seeing  a  man  on  whom  he  had  never 
looked  without  trembling,  brought  before  him  in  this 
situation,  fell  into  fits,  was  carried  to  his  bed,  and 
never  rose  from  it.  On  his  way  to  the  tower,  to 
which  he  was  committed,  he  saw  threatening  faces 
on  every  side ;  he  saw  whips  and  halters  held  up 
around  him,  and  cried  out  in  an  agony  "  for  the  Lord's 
sake  keep  them  off."  I  saw  him,  I  heard  him,  says  a 
cotemporary  historian,  and  without  pity  too  ;  though 
without  pity  I  never  saw  any  other  malefactor."1 

Even  Jeffries  might  have  been  a  good  judge  had 
he  held  his  office  independent  of  the  crown.  The 
English  people  felt  the  want  of  this  independency  in 
their  judges,  and  struggled  for  it  until  they,  in  a 
measure,  obtained  their  object.  An  act  was  passed 
13  W.  III.  entitled  "  An  act  for  the  further  limitation 
of  the  crown,  and  better  securing  the  rights  and  liber- 
ties of  the  subject,"  in  which  provision  is  made  that 
the  commissions  of  the  judges  shall  be,  not  as  for- 
merly, "  durante  bene  placito"  but  "  quamdiu  bene 
se  gesserint." 

If  Judge  Jeffries  was  the  law's  worst  assassin  when 
he  held  his  office,  during  the  pleasure  of  one  despot, 
what  would  he  have  been  had  he  held  his  office  for  a 
year,  or  during  the  pleasure  of  (Mr.  Jefferson's)  one 
hundred  and  seventy-three  despots  ?  ~  It  is  impossi- 
ble to  tell ;  it  is  however,  probable,  that  one  hundred 
and  seventy-three  despots  would  have  kept  him  in 
office  as  long  as  one  did  ;  if  he  held  his  office  for  a 

1  Guth.  1063. 

*  See  page  3G,  Mr.  Jefferson's  Notes,  for  his  opinion  of  one  hundred 
and  seventy-three  despots. 
23 


182  LIFE    OF    NATHANIEL    CHIPMAN. 

year,  he  might  have  been  reappointed,  year  after 
year,  notwithstanding  all  his  oppression  and  cruelty. 
It  is  a  work  of  pleasure  to  quote  on  this  subject 
the  writings  of  Mr.  Jefferson.  He  says,  in  his  Notes 
on  Virginia,  page  117,  that  "  Every  species  of  gov- 
ernment has  its  specific  principles.  Ours,  perhaps, 
are  more  peculiar  than  those  of  any  other  in  the  uni- 
verse. It  is  a  composition  of  the  freest  principles  of 
the  English  constitution,  with  others,  derived  from 
natural  right  and  natural  reason."  He  meant  to  be 
understood,  that  the  provision,  to  hold  the  office  of 
judge  quamdiu  bene  se  gesserint,  or  daring  good  beha- 
vior, is  one  of  these  first  principles ;  he  therefore 
introduced  it  into  his  draft  of  a  constitution  for  the 
people  of  Virginia.  Let  the  people  of  Vermont  adopt 
the  same  principle. 

Upon  the  propriety  of  fixing  upon  a  certain  age  beyond 
which  a  judge  cannot  constitutionally  hold  his  office. 

Judge  Wilson,  with  much  pleasantry  remarks,  that 
"  The  duration  assigned  by  nature  to  human  life  is 
often  complained  of  as  very  short ;  that  assigned  to  it 
by  some  politicians  is  much  shorter.  For  some  po- 
litical purposes,  a  man  cannot  breathe  before  he  num- 
bers thirty-five  years ;  as  to  other  political  purposes, 
his  breath  is  extinguished  the  moment  he  reaches 
sixty.  By  the  constitution  of  New  York,  "the  chan- 
cellor, the  judges  of  the  supreme  court,  and  the  first 
judge  of  the  county  court  in  every  county,  hold  their 
offices  until  they  shall  have  respectively  attained  the 
age  of  sixty  years." 

How  differently   is  the  same  object  received,   at 


LIFE    OF    NATHANIEL    CHIPMAN.  183 

different  times,  and  in  different  countries.  In  New 
York,  a  man  is  deemed  unfit  for  the  first  offices  of  the 
state  after  he  is  sixty ;  in  Sparta,  a  man  was  deemed 
unfit  for  the  first  offices  of  the  state  till  he  was  sixty. 
Till  that  age  no  one  was  entitled  to  a  seat  in  the  sen- 
ate,  the  highest  honor  of  the  chief.  How  convenient 
it  would  be,  if  a  politician  possessed  the  power,  so 
finely  exercised  by  the  most  beautiful  of  poets  !  Vir- 
gil could,  with  the  greatest  ease  imaginable,  bring 
iEneas  and  Dido  together ;  though  in  fact,  some  cen- 
turies elapsed  between  the  times  in  which  they  lived. 
Why  cannot  some  politician,  by  the  same  or  some 
similar  enchanting  art,  produce  an  ancient  and  a 
modern  government  as  cotemporaries  ?  The  effect 
would  be  admirable.  The  moment  that  a  gentleman 
of  sixty  would  be  disqualified  for  retaining  his  seat  as 
a  judge  of  New  York,  he  would  be  qualified  for 
taking  his  seat  as  a  senator  of  Sparta.  2  Wilsoti's 
Works,  144. 

Balance  of  Power. 

"  The  true  meaning  of  a  balance  of  power,"  says 
John  Adams,  "  is  best  conceived  by  considering  what 
the  nature  of  a  balance  is.  It  supposes  three  things  ; 
first,  the  part  which  is  held,  together  with  the  hand 
that  holds  it ;  and  then  the  two  scales,  with  whatever 
is  weighed  therein.  In  a  state  within  itself,  the  bal- 
ance must  be  held  by  a  third  hand,  who  is  to  deal 
the  remaining  power,  with  the  utmost  exactness  into 
the  several  scales.  The  balance  may  be  held  by  the 
weakest,  who,  by  his  address,  removing  from  either 
scale,  and  adding  his  own,  may  keep  the  scales  duly 


184  LIFE    OF    NATHANIEL    CHIPMAN. 

poised  ;  when  the  balance  is  broken  by  mighty  weights 
falling  into  either  scale,  the  power  will  never  con- 
tinue long,  in  equal  division  between  the  two  re- 
maining parties,  but,  till  the  balance  is  fixed  anew, 
will  run  entirely  into  one."  Adams's  Defence,  vol.  1, 
p.  100. 

Let  the  people  take  care  of  the  balance,  and  espe- 
cially their  part  of  it ;  but  the  preservation  of  their 
peculiar  part  of  it  will  depend  still  upon  the  existence 
and  independence  of  the  other  two ;  the  instant  the 
other  branches  are  destroyed,  their  own  branch,  tluir 
own  deputies  become  their  tyrants.     Ibid.  370. 

Judge  Wilson,  treating  of  this  subject,  says,  "  though 
the  foregoing  great  powers — legislative,  executive  and 
judicial  —  are  all  necessary  to  a  good  government,  yet 
it  is  of  the  last  importance  that  each  of  them  be  pre- 
served distinct  and  unmingled,  in  the  exercise  of 
its  separate  powers,  with  either  or  with  both  of  the 
others.  Here  every  degree  of  confusion  in  the  plan 
will  produce  a  corresponding  degree  of  interference, 
opposition,  or  perplexity  in  its  execution.  Let  us 
suppose  the  legislative  and  executive  powers  united 
in  the  same  person ;  can  liberty  or  security  be  ex- 
pected ?  No.  In  the  character  of  executive  magis- 
trate, he  receives  all  the  power,  which,  in  the  charac- 
ter of  legislator,  he  thinks  proper  to  give.  May  he 
not,  then  —  and  if  he  may,  will  he  not,  then  —  such 
is  the  undefined  and  undefinable  charm  of  power  — 
enact  tyrannical  laws  to  furnish  himself  an  opportu- 
nity of  executing  them  in  a  tyrannical  manner? 

Liberty  and  security  in  government  depend  not  on 
the  limits  which  the  rulers  may  please  to  assign  to  the 


LIFE    OF    NATHANIEL    CHIPMAN.  185 

exercise  of  their  own  powers,  but  on  the  boundaries, 
within  which  their  powers  are  circumscribed  by  the 
constitution.  He  who  is  continually  exposed  to  the 
lash  of  oppression,  as  well  as  he  who  is  immediately 
under  it,  cannot  be  denominated  free. 

"  Let  us  suppose  the  legislative  and  judicial  powers 
united,  what  would  be  the  consequence  ? 

"  The  lives,  liberties  and  properties  of  the  citizens 
would  be  committed  to  arbitrary  judges,  whose  de- 
cisions would,  in  effect,  be  dictated  by  their  own  pri- 
vate passions,  and  would  not  be  governed  by  any 
fixed  or  known  principles  of  law.  For  though,  as 
judges,  they  might  be  bound  to  observe  those  prin- 
ciples, yet,  Proteus-like,  they  might  immediately  as- 
sume the  form  of  legislators,  and  in  that  shape  they 
might  escape  from  every  fetter  and  obligation  of 
law. 

"  Let  us  suppose  a  union  of  the  executive  and  judi- 
cial powers ;  this  union  might  soon  be  an  overbalance 
for  the  legislative  authority ;  or  if  that  expression  is 
too  strong,  it  might  certainly  prevent  or  destroy  the 
proper  and  legitimate  influence  of  that  authority. 
The  laws  might  be  eluded  or  perverted,  and  the  ex- 
ecution of  them  might  become,  in  the  hands  of  the 
magistrate,  or  in  his  minions,  an  engine  of  tyranny 
and  injustice.  Where  and  how  is  redress  to  be  ob- 
tained ?  From  the  legislature  ?  They  make  new 
laws  to  correct  the  mischief;  but  these  new  laws  are 
to  be  executed  by  the  same  persons,  and  will  be  exe- 
cuted in  the  same  manner  as  the  former.  Will  re- 
dress be  found  in  the  courts  of  justice  ?  In  those 
courts,  the  very  persons  who  were  guilty  of  the  op- 


186  LIFE    OF    NATHANIEL    CHIPMAN. 

pression  in  their  administration,  sit  as  judges  to  give 
a  sanction  to  their  oppression  by  their  decrees.  No- 
thing is  more  to  be  dreaded  than  maxims  of  law  and 
reasons  of  state  blended  together  by  judicial  author- 
ity. Among  all  the  terrible  instruments  of  arbitrary 
power,  decisions  of  courts,  whetted,  and  guided  and 
impelled  by  considerations  of  policy,  cut  with  the 
keenest  edge,  and  inflict  the  deepest  and  most  deadly 
wounds. 

"  Let  us  suppose,  in  the  last  place,  all  the  three 
powers  of  government  to  be  united  in  the  same  man, 
or  body  of  men,  miserable  indeed  would  the  case  be  ! 
This  extent  of  misery,  however,  at  least  in  Europe,  is 
seldom  experienced  ;  because  the  power  of  judging 
is  generally  exercised  by  a  separate  department.  But 
in  Turkey,  where  all  three  powers  are  joined  in  the 
Sultan's  person,  his  slaves  are  crushed  under  the 
insupportable  burthen  of  oppression  and  tyranny.  In 
some  of  the  governments  of  Italy,  these  three  powers 
are  also  united.  In  such  there  is  less  liberty  than  in 
European  monarchies ;  and  their  governments  are 
obliged  to  have  recourse  to  as  violent  measures  to 
support  themselves  as  even  that  of  the  Turks.  At 
Venice,  where  an  aristocracy,  jealous  and  tyrannical, 
absorbs  every  power,  behold  the  state  inquisitors,  the 
lion's  mouth,  at  all  times  open  for  the  secret  accusa- 
tions of  spies  and  informers.  In  what  a  situation 
must  the  wretched  subjects  be  under  such  a  govern- 
ment, all  the  powers  of  which  are  leagued,  in  awful 
combination,  against  the  peace  and  tranquillity  of 
their  minds. 

"  But,  further ;  each  of  the  great  powers  of  gov- 


LIFE    OF    NATHANIEL    CHIPMAN.  187 

eminent  should  be  independent  as  well  as  distinct. 
When  we  say  this  it  is  necessary  —  since  the  subject 
is  of  primary  consequence  in  the  science  of  govern- 
ment —  that  our  meaning  be  fully  understood  and  ac- 
curately defined.  For  this  position,  like  every  other, 
has  its  limitations ;  and  it  is  important  to  ascertain 
them. 

"  The  independence  of  each  power  consists  in  this, 
that  its  proceedings  and  the  motives,  views  and  prin- 
ciples, which  produce  those  proceedings,  should  be 
free  from  the  remotest  influence,  direct  or  indirect, 
of  either  of  the  other  two  powers.  But  further  than 
this,  the  independency  of  each  power  ought  not  to 
extend.  Its  proceedings  should  be  formed  without 
restraint,  but,  when  they  are  once  formed,  they  should 
be  subject  to  control. 

"  We  are  now  led  to  discover,  that  between  these 
three  great  powers  of  government  there  ought  to  be 
a  natural  dependency  as  well  as  a  mutual  indepen- 
dency. We  have  described  their  independency  ;  let 
us  now  describe  their  dependency.  It  consists  in  this, 
that  the  proceedings  of  each,  when  they  come  forth 
into  action  and  are  ready  to  affect  the  whole,  are 
liable  to  be  examined  and  controlled  by  one  or  both 
of  the  others. 

"  So  far  are  these  different  qualities  of  mutual  de- 
pendency and  mutual  independency  from  opposing  or 
destroying  each  other,  that,  without  one,  the  other 
could  not  exist.  Wherever  the  independency  of  one, 
or  more  than  one,  is  lost,  the  mutual  dependency  of 
the  others  is  that  moment  lost  likewise  ;  it  is  changed 
into  a  constant  dependency  of  that  one  part  on  two ; 
or  as  the  case  may  be,  of  those  two  parts  on  one. 


188  i       LIFE    OF    NATHANIEL    CHIPMAN. 

"  An  example  may  illustrate  the  foregoing  propo- 
sitions. They  cannot  be  explained  too  fully.  The 
congress  is  intrusted  with  the  legislative  power  of  the 
United  States.  In  preparing  bills,  in  debating  them, 
in  passing  them,  in  refusing  to  pass  them,  their  reso- 
lutions and  proceedings  should  be  uncontrolled  and 
uninfluenced.  Here  is  the  independency  of  the  legis- 
lative power.  But  after  the  proceedings  of  the  legis- 
lature are  finished,  so  far  as  they  depend  on  it,  they 
are  sent  to  be  examined,  and  are  subject  to  a  given 
degree  of  control  by  the  head  of  the  executive  de- 
partment. Here  is  the  dependency  of  the  legislative 
power.  It  is  subject  also  to  another  given  degree  of 
control  by  the  judiciary  department,  whenever  the 
laws  though  in  fact  passed,  are  found  to  be  contradic- 
tory to  the  constitution. 

"  The  salutary  consequence  of  mutual  dependency 
of  the  great  powers  of  government  is,  that  if  one 
part  should,  at  any  time,  usurp  more  power  than  the 
constitution  gives,  or  make  an  improper  use  of  its 
constitutional  power,  one  or  both  the  other  parts  may 
correct  the  abuse,  or  may  check  the  usurpation. 

"  The  total  disjunction  of  these  powers  would,  in 
the  end,  produce  that  very  union  against  which  it 
seems  to  provide.  The  legislature  would  soon  be- 
come tyrannical,  and  would  assume  to  itself  the  rights 
of  the  executive  and  judicial  powers. 

"  The  important  conclusion  to  be  drawn  from  the 
premises,  which  we  have  established  is,  that  in  gov- 
ernment, the  perfection  of  the  whole  depends  on  the 
balance  of  the  parts,  and  the  balance  of  the  parts 
consists  in  the  independent  exercise  of  their  separate 


LIFE    OF    NATHANIEL    CHIPMAN.  189 

powers,  and  when  their  powers  are  separately  exer- 
cised, therein  consists  their  mutal  influence  and  opera- 
tion on  one  another.  Each  part  acts  and  is  acted 
upon,  supports  and  is  supported,  regulates  and  is  reg- 
ulated by  the  rest. 

"  It  might  be  supposed,  that  these  powers,  thus  mu- 
tually checked  and  controlled,  would  remain  in  a  state 
of  inaction.  But  there  is  a  ncessity  for  movement  in 
human  affairs,  and  these  powers  are  forced  to  move, 
though  still,  to  move  in  concert.  They  move,  indeed, 
in  a  line  of  direction  somewhat  different  from  that, 
which  each  acting  by  itself,  would  have  taken  ;  but  at 
the  same  time,  in  a  line  partaking  of  the  natural 
direction  of  each,  and  formed  out  of  the  natural 
directions  of  the  whole  —  the  true  line  of  public  lib- 
erty and  happiness."     Wilson's  Works,  407-411. 

Another  eminent  man,  Thomas  Jefferson,  late  pres- 
ident of  the  United  States,  speaking  of  the  old  con- 
stitution of  Virginia,  which  had  its  three  powers  with- 
out a  balance,  says, 

"  All  the  powers  of  government,  legislative,  execu- 
tive and  judiciary,  result  to  the  legislative  body.  The 
concentrating  these  in  the  same  hands  is  precisely  the 
definition  of  a  despotic  government.  It  will  be  no 
alleviation  that  these  powers  will  be  exercised  by  a 
plurality  of  hands,  and  not  a  single  one.  One  hun- 
dred and  seventy-three  despots  would  surely  be  as  op- 
pressive as  one.  Let  those  who  doubt  it  turn  their 
eyes  on  the  republic  of  Venice.  As  little  will  it  avail 
us  that  they  are  chosen  by  ourselves.  An  elective  des- 
jjoiism  was  not  the  government  we  fought  for,  but  one 
which  should  not  only  be  founded  on  free  principles, 

24 


190  LIFE    OF    NATHANIEL    CHIPMAN. 

but  in  which  the  powers  of  government  should  be  so 
divided  and  balanced  among  several  bodies  of  majes- 
tracy,  as  that  no  one  could  transcend  their  legal  limits 
without  being  effectually  checked  and  restrained  by 
the  others. 

For  this  reason  that  convention,  which  passed  the 
ordinance  of  government,  laid  its  foundation  on  this 
basis,  that  the  legislative,  executive  and  judiciary  de- 
partments should  be  separate  and  distinct,  so  that  no 
person  should  exercise  the  powers  of  more  than  one 
of  them  at  the  same  time.  But  no  barrier  was  pro- 
vided between  these  several  powers.  The  judiciary  and 
executive  members  were  left  dependent  on  the  legisla- 
tive for  their  subsistence  in  of  ice,  and  some  of  them  for 
their  continuance  in  it.  If,  therefore,  the  legislature 
assumes  executive  and  judiciary  powers,  no  opposi- 
tion is  likely  to  be  made ;  nor,  if  made,  can  it  be 
effectual ;  because  in  that  case  they  may  put  their 
proceedings  into  the  form  of  an  act  of  assembly, 
which  will  render  them  obligatory  on  the  other 
branches.  They  have  accordingly,  in  many  instances, 
decided  rights  which  should  have  been  left  to  judi- 
ciary controversy;  and  the  direction  of  the  executive, 
during  the  whole  time  of  their  session,  is  becoming 
habitual  and  familiar.  And  this  is  done  with  no  ill 
intention.  The  views  of  the  present  members  are 
perfectly  upright.  When  they  are  led  out  of  their 
regular  province,  it  is  by  art  in  others,  and  inadver- 
tence in  themselves.  And  this  will  probably  be  the 
case  for  some  time  to  come.  But  it  will  not  be  a 
very  long  time.  Mankind  soon  learn  to  make  inter- 
ested uses  of  their  right  and  power  which  they  pos- 


LIFE    OF    NATHANIEL    CHIPMAN.  191 

sess,  or  may  assume.  The  public  money  and  public 
liberty,  intended  to  have  been  deposited  with  three 
branches  of  magistracy,  but  found  inadvertently  to  be 
in  the  hands  of  one  only,  will  soon  be  discovered  to 
be  sources  of  wealth  and  dominion  to  those  who  hold 
them  ;  distinguished  too  by  this  tempting  circum- 
stance, that  they  are  the  instrument  as  well  as  the  ob- 
ject of  acquisition.  With  money,  we  will  get  men, 
said  Caesar,  and  with  men  we  will  get  money.  Nor 
should  our  assembly  be  deluded  by  the  integrity  of 
their  own  purposes,  and  conclude  that  these  unlimited 
powers  will  never  be  abused,  because  themselves  are 
not  disposed  to  abuse  them."  Notes  on  Virginia,  161, 
162. 

Mr.  Jefferson,  without  intending  it,  has  here  given, 
in  anticipation,  a  striking  description  of  the  govern- 
ment of  Vermont,  and  furnished  unanswerable  argu- 
ments in  favor  of  the  amendments. 

When  the  convention,  called  to  consider  the  pro- 
posed amendments  to  the  constitution,  assembled, 
they  rejected  them  in  gross  without  the  least  discus- 
sion of  their  merits  —  they  were  blown  off  by  the 
spirit  of  party,  as  proposed  amendments  to  the  con- 
stitution, in  almost  every  instance,  have  been.  The 
council  of  censors  are  elected  by  a  general  ticket, 
and  if  not  all  taken  from  the  dominant  party,  they 
are  selected  by  that  party  ;  and  whatever  amendments 
such  council  may  propose,  will  be  received  in  an 
unfavorable  light  by  their  political  opponents.  And 
when  the  members  of  the  convention  assemble,  their 
discordant  views  in  relation  to  amending  the  consti- 
tution, cannot  be  reconciled  by  any  compromise  ;  the 


192  LIFE    OF    NATHANIEL    CHIPMAN. 

powers  of  the  convention  being  restricted  to  the  sim- 
ple adoption  or  rejection  of  each  article  proposed, 
without  the  least  alteration. 

Alter  the  amendment  of  the  constitution,  in  the 
year  183(j,  by  constituting  a  senate,  Judge  Chipman 
wrote  to  his  correspondent,  who  had  given  him  an 
account  of  the  proceedings  of  the  convention  :  —  "I 
fully  agree  with  you  as  to  the  importance  of  the 
amendment,  adding  a  senate  to  the  legislative  depart- 
ment of  the  government ;  its  beneficial  effects  as  a 
check  on  the  rashness  of  legislation,  will  be  more  and 
more  apparent  every  year.  I  think  it  also  a  good 
omen  of  other  important  amendments  in  future,  espe- 
cially one  in  relation  to  the  tenure  of  judicial  office, 
and  another,  taking  from  the  legislature  the  power  of 
appointment,  and  vesting  it  in  a  bound  less  liable  to 
a  corrupt  and  corrupting  influence. 

Other  amendments  should  be  thought  of;  one  con- 
stituting a  court  of  chancery  distinct  from  a  court  of 
law.  I  have  long  since  learned  in  the  school  of  ex- 
perience, on  whose  teachings  we  may  with  more 
safety  rely  than  upon  the  most  ingeniously  constructed 
theory,  that  there  are  insurmountable  objections  to 
our  present  chancery  system,  all  of  which  I  cannot 
detail  in  a  letter.  The  most  obvious  to  all  judges, 
and  to  all  conversant  with  our  judicial  proceedings, 
are,  that  the  judge  being  compelled  at  the  same  term 
to  turn  his  attention  to  the  trial  of  issues  of  fact  and 
issues  of  law,  and  to  cases  in  chancery,  a  versatility 
of  talent  is  required,  which  no  judge  possesses.  That 
the  principal  business,  at  every  term,  is  the  trial  of 
cases  at  law,  the  consequence  is  that  no  system  of 


LIFE    OF    NATHANIEL    CHIPMAN.  193 

practice  has  been  settled,  and  probable  never  can  be 
settled,  to  prevent  suits  in  chancery  from  being  passed 
over  and  postponed  from  term  to  term,  occasioning 
unreasonable  delay  and  ruinous  expense  to  the  suit- 
ors. I  confess  I  was  never  able  to  devise  any  ade- 
quate remedy  for  these  evils  under  our  present  chan- 
cery system. 

Another  amendment  might  be  thought  of  relating 
to  the  local  affairs  and  police  of  the  counties,  which 
are  now  committed  to  the  county  courts,  with  insuffi- 
cient and  not  very  definite  powers.  I  think  this  does 
not  well  assort  with  our  political  institutions.  The 
towns  are  organized  with  sufficient  powers  to  man- 
age their  own  local  concerns.  A  board  of  super- 
visors in  each  county  to  be  elected  by  the  people  of 
the  several  towns,  with  sufficient  powers  to  regulate 
and  order  the  local  affairs  and  interests  of  the  coun- 
ties, might  be  very  properly  interposed  between  the 
towns  and  the  general  government  of  the  state.  It 
will  be  seen  at  a  glance,  that  there  are  many  local 
concerns  of  the  counties  that  might  be  better  man- 
aged by  such  a  board  than  by  the  legislature,  and 
more  in  consistence  with  the  principles  and  form  of 
our  government  than  by  the  county  court.  It  is  un- 
necessary to  enter  into  details.  These  two  amend- 
ments are  of  less  importance,  because  the  legislature 
may  erect  a  court  of  chancery,  and  establish  a  system 
of  police  for  the  counties,  under  the  existing  consti- 
tution. Yet  a  court  of  chancery,  and  a  system  of  po- 
lice for  the  counties  should  be  rendered  more  stable 
than  they  can  be  by  acts  of  legislation.  The  two 
former  amendments  relating  to  the  tenure  of  judicial 


194  LIFE    OF    NATHANIEL   CHIPMAN. 

office,  and  the  power  of  appointment,  are  of  very 
great  importance,  and  ought  to  be  kept  constantly  in 
view  of  the  people  by  repeated  but  calm  and  candid 
discussion.  Perhaps,  if  indolence  does  not  prevent, 
I  may  hereafter  send  you  some  speculations  on  the 
subject.  But  I  fear  the  attention  of  the  people  can- 
not be  turned  from  the  interest  of  party  to  the  inter- 
est of  the  state."  He  soon  after  found  this  to  be  the 
case,  and  paid  no  further  attention  to  the  subject. 

On  the  20th  of  December,  1 342,  he  wrote  to  his 
correspondent :  —  "I  am  glad  that  you  have  under- 
taken an  examination  of  the  last  article  in  our  con- 
stitution, providing  for  the  election  of  a  council  of 
censors,  periodically,  at  the  expiration  of  every  term 
of  seven  years,  vested  with  certain  powers,  and 
among  others,  that  of  proposing  amendments  to  the 
constitution,  and  calling  a  convention  to  act  on  their 
specific  propositions.  As  to  their  censorial  powers, 
I  have  always  considered  them  a  mere  nose  of  wax, 
and  the  impropriety,  not  to  say  absurdity,  of  the  pro- 
vision, which  compels  the  representatives  of  the  peo- 
ple, in  convention,  to  work  in  trammels,  confining 
them  to  the  adoption  or  rejection  of  each  article  pro- 
posed, without  the  least  alteration,  is  very  apparent. 
I  wish  I  could  write  you  more  fully  on  this  subject, 
but  I  have  so  nearly  lost  my  eye-sight  that  writing, 
as  you  will  perceive  by  this,  has  become  extremely 
difficult." 


CHAPTER  IX. 

Elected  Chief  Justice  in  October,  1813  —  Displaced  in  1815  —  His  Judi- 
cial Character. 

In  October,  1813,  Mr.  Chipman  was  again  elected 
chief  justice  of  the  supreme  court,  and  continued  in 
the  office  until  October,  1815,  when,  by  reason  of  our 
annual  election  of  the  judges,  and  by  a  change  of  par- 
ties, he  and  the  associate  judges  were  displaced. 

Many  of  the  most  important  cases  decided  by  the 
supreme  court,  while  he  was  chief  justice,  were  re- 
ported by  him,  and  some  years  after,  were  published 
in  D.  Chipman's  Reports. 

In  portraying  the  character  of  Nathaniel  Chipman, 
I  have  already  shown  that  his  intellectual  and  moral 
qualities  peculiarly  fitted  him  for  the  office  of  judge. 
Yet  he  so  nearly  realized  what  he  said  in  a  playful 
manner  to  his  classmate,  Mr.  Fitch,  that  he  should 
become  the  oracle  of  law  to  the  state  of  Vermont,  it 
seems  proper,  and  may  be  useful  to  state  the  manner 
in  which  he  presided  as  chief  justice,  and  more  par- 
ticularly the  causes  which  operated  to  render  him  so 
distinguished  as  a  judge. 

The  popularity  which  he  acquired  arose  from,  and 
followed,  the  performance  of  his  judicial  duties.  Such 
was  his  manner  of  presiding,  and  such  his  intercourse 


196  LIFE    OF    NATHANIEL    CHIPMAN. 

with  his  fellow-citizens,  that  all  classes  of  men  felt 
quite  certain  that  he  never  said  or  did  anything  for 
the  purpose  of  acquiring  popularity.  An  eminent 
jurist  remarks  —  "He  never  put  himself  forward  as  a 
candidate  for  office,  hut  when  he  was  advanced  to 
any  public  station,  it  seemed  to  arise  from  the  gen- 
eral sense  of  the  community,  that  his  talents  were 
wanted  in  the  station  to  which  he  was  advanced. 
Although  on  a  change  of  parties,  in  the  year  1813, 
the  federalists  had  a  majority  of  only  one  or  two  in 
joint  ballot,  and  although  party  spirit  was  never  more 
excited  or  more  proscriptive,  he  was  elected  chief 
justice  by  a  majority  of  seventeen. 

"  I  was  in  considerable  practice  during  the  differ- 
ent times  that  Nathaniel  Chipman  was  chief  justice, 
and  I  can  truly  say,  that  in  times  of  the  greatest  party 
excitement,  I  never  heard  an  intimation,  nor  even  a 
whisper,  expressing  a  doubt  as  to  the  talents,  inde- 
pendence, and  impartiality  of  Judge  Chipman.  When- 
ever he  presided,  he  seemed  to  inspire  the  profession 
and  the  community  with  the  most  unlimited  confi- 
dence. He  governed  the  court  with  the  greatest 
ease  ;  his  presence  on  the  bench  appeared  sufficient 
to  preserve  the  most  perfect  order  in  court.  Every 
one,  both  counsel  and  parties,  had  the  fullest  confi- 
dence that  every  case  would  be  decided  according  to 
law  and  the  justice  of  the  case,  and  his  decisions 
seldom  failed  of  giving  entire  satisfaction  to  all  con- 
cerned, lie  had  a  peculiar  faculty  in  charging  the 
jury  ;  while  he  retained  all  questions  of  law  strictly 
under  the  control  of  the  court,  he  was  careful  not  to 
intrench  on  the  province  of  the  jury,  as  to  the  finding 


LIFE    OF   NATHANIEL    CHIPMAN.  197 

of  the  facts  in  the  case.  His  course  was,  to  give  a 
summary  of  the  testimony  of  each  witness,  and  instruct 
the  jury  as  to  the  point  in  the  case  to  which  each  part 
of  the  testimony  was  to  be  applied.  Then  to  state 
the  situation,  circumstances,  and  manner  of  testifying 
of  each  witness,  what  circumstances  militated  against, 
and  what  corroborated  the  testimony,  in  such  a  man- 
ner as  to  leave  the  entire  question  of  fact  to  the  jury  ; 
in  this  manner  he  seldom  failed  of  leading  the  jury  to 
a  satisfactory  verdict.  His  treatment  of  the  members 
of  the  bar  was  such  as  to  promote  in  them,  high  and 
honorable  views  of  the  profession  and  practice  of 
law.  He  had  a  happy  talent  of  adapting  the  law  to 
the  justice  of  the  case,  so  that  it  was  seldom  neces- 
sary to  apply  to  the  equity  side  of  the  court."1 

At  four  different  times  he  left  his  practice,  and  took 
a  seat  upon  the  bench  ;  and  in  every  case  he  put  off 
the  manner  of  the  advocate,  and  assumed  that  of  the 
judge,  and,  of  course,  never  argued  the  case  in  charg- 
ing the  jury  ;  but  made  a  statement  of  the  evidence 
as  above  related,  with  a  statement  of  the  principles 
of  law  involved  in  the  case.  And  from  his  habitual 
regard  for  truth,  he  did  it  in  such  manner  as  to  satisfy 
all  who  heard  him,  that  it  was  done  with  perfect  im- 
partiality. He  used  to  remark,  that  he  never  dared 
to  argue  a  case  in  charging  the  jury,  for  if  he  did,  the 
jury  would  undertake  to  argue  it  also,  and  in  their 
view,  their  own  arguments  would  outweigh  his.  He 
had  such  a  detestation  of  fraud  or  oppression,  and 
even  of  anything  unfair  or  dishonorable  in  the  party 

1  Hon.  Charles  Marsh. 
25 


198  LIFE    OF    NATHANIEL    CHIPMAN. 

or  his  counsel,  that  when  viewed  with  his  habitual 
care  and  caution,  the  facts  appeared  clear  and  un- 
doubted, lie  was  sure  to  animadvert  upon  the  con- 
duct of  the  person  implicated,  in  open  court,  but 
never  with  severity  in  the  manner  of  doing  it.  All 
experience  has  shown  that  this  practice  has  a  very 
salutary  effect  on  the  community.  But  it  is  not  every 
judge  who  can  pursue  this  course,  with  safety  to  him- 
self or  with  any  good  effect  on  those  who  hear  him. 
It  is  necessary  that  he  have  a  clear,  discriminating 
mind  ;  that  he  be  cautious  in  forming  his  opinions ; 
that  he  be  entirely  free  from  all  prejudice,  and  that  he 
be  conscious  that  he  is  so.  Sometimes  an  unfortunate 
manner  of  presiding  will  prevent  a  judge  from  pursu- 
ing this  course  with  any  good  effect  —  but  this  is  sel- 
dom the  case  ;  for  if  he  have  every  other  qualifica- 
tion, his  manner  will  soon  be  overlooked. 

In  a  certain  case  before  the  court,  a  motion  was 
made  for  a  continuance  ;  on  a  hearing,  it  appeared 
that  the  counsel  making  the  motion  had  resorted  to  a 
number  of  tricks  and  cunning  contrivances  to  obtain 
the  continuance  ;  at  the  close  of  the  arguments,  the 
judge  simply  remarked,  "  It  has  been  said,  and  all  ex- 
perience has  verified  the  truth  of  the  observation, 
that  there  is  nothing  so  silly  as  cunning  —  the  cause 
cannot  be  continued." 

On  the  trial  of  an  action  of  ejectment  before  the 
court,  the  plaintiff  relied  on  a  deed  of  the  land  in 
question,  from  the  defendant.  The  defendant's  coun- 
sel objected  to  the  admission  of  the  deed  in  evidence, 
for  that  one  of  the  two  subscribing  witnesses  to  the 
deed  was  the  wife  of  the  grantor ;  upon  which  Judge 


LIFE    OF    NATHANIEL    CHIPMAN.  199 

Chipman  addressed  the  defendant's  counsel,  saying, 
"  If  this  is  your  only  defence,  your  client  ought  to  be 
advised  to  make  out  a  new  and  proper  deed  without 
hesitation."  Accordingly  the  defence  was  at  once 
abandoned. 

No  popular  excitement,  no  excitement  at  the  bar, 
could  ever  disturb  him,  but  he  was  at  all  times,  and 
under  all  circumstances,  equally  cool,  deliberate  and 
patient.  It  seemed  that  his  mind  could  never  be 
diverted  from  the  subject  under  examination.  Many 
causes  had  operated  to  produce  these  qualities  both 
moral  and  intellectual,  which  so  preeminently  quali- 
fied him  for  the  performance  of  his  judicial  duties. 
As  we  have  before  remarked,  he  had  a  most  abiding 
sense  of  his  accountability  to  the  Supreme  Being, 
always  insisting  that  there  was  no  other  foundation 
for  moral  obligation.  A  conscientious  regard  for 
truth  thence  resulting,  afforded  him  essential  aid  in 
the  cultivation  of  his  intellectual  faculties;  for  it  is 
not  only  an  important  stimulus  in  the  pursuit  of  it, 
but  is  a  protection  against  false  reasoning. 

It  has  been  said,  that  "  the  study  of  the  dead  lan- 
guages is  highly  beneficial,  as  it  cultivates  a  habit  of 
patience,  of  attention,  of  acuteness  and  discrimina- 
tion." The  truth  of  this  is  verified  as  far  as  it  can  be 
verified  by  one  striking  instance,  in  which  all  those 
mental  qualities  and  habits  have  followed  an  habitual 
attention  to  the  dead  languages.  He  was  shielded 
against  prejudice  in  making  his  decisions,  as  well  by 
his  acute  and  discriminating  mind,  as  by  his  habitual 
regard  for  truth  and  justice.  He  so  clearly  discerned 
a  difference  between  the  right  and  wrong  side  of  a 


200  LIFE    OF    NATHANIEL    CHIPMAN. 

cause,  and  derived  so  high  a  degree  of  pleasure  from 
the  investigation  of  a  case,  and  the  formation  of  a 
just  and  satisfactory  decision,  that  he  seemed  to  lose 
sight  of  the  parties,  and  everything  extraneous. 
Whereas  a  judge,  who,  for  want  of  clear  perception, 
can  perceive  no  distinction  between  the  right  and 
wrong  side  of  a  case  is  influenced  in  making  his  de- 
cision by  the  slightest  prejudice.  True,  a  man  of 
ordinary  powers  of  mind,  if  he  be  undisturbed  by  his 
passions,  so  that  he  can  make  the  best  use  of  his 
faculties,  and  if  he  have  also  a  strong  sense  of  justice, 
may  become  a  useful  and  respectable  judge,  but  he 
can  never  be  a  Mansfield  or  a  Marshall. 

We  have  seen  that  Judge  Chipman  was  early  in 
life  distinguished  for  his  untiring  industry  in  the  acqui- 
sition of  general  knowledge.  When  he  entered  up- 
on his  professional  studies,  he  was  equally  industrious 
and  equally  successful,  and  his  legal  learning  became 
deep  and  extensive.  But  his  attention  was  not  con- 
fined to  legal  science  ;  it  extended  to  the  whole  circle 
of  the  arts  and  sciences ;  to  all  the  various  trades 
and  occupations  of  men.  And  many  citizens,  trades- 
men and  manufacturers,  have  expressed  their  sur- 
prise that  his  knowledge  of  the  various  branches  of 
business  was  so  minute,  that  it  seemed  to  be  practical 
as  well  as  theoretical.  President  Dwight  remarked, 
that  he  fell  in  company  with  him  not  many  years  after 
he  entered  upon  the  business  of  his  profession,  and 
calculating  that  he  would  feel  more  at  home  in  con- 
versing upon  legal  science,  introduced  that  subject ; 
but  before  they  parted,  he  found  that  his  knowledge 
embraced  all  the  sciences,  and  that  in  conversing 


LIFE    OF    NATHANIEL    CHIPMAN.  201 

upon  theology  he  appeared  perfectly  at  home.  This 
general  knowledge  which  he  had  acquired  was  highly 
useful  to  him  as  a  jurist.  His  memory  was  remarka- 
bly retentive.  Whenever  he  acquired  a  knowledge 
of  important  principles,  or  facts  in  themselves  import- 
ant, it  appeared  that  they  never  escaped  his  recollec- 
tion, but  were  laid  up  in  perfect  order,  always  ready 
for  use. 

That  which  he  acquired  from  books  he  made  so 
perfectly  his  own,  that  it  appeared  not  to  have  been 
acquired  and  retained  in  memory,  but  to  be  the  re- 
sult of  his  own  investigations.  In  conversation  upon 
legal  subjects,  he  seldom  referred  to  authorities,  but 
drew  upon  his  knowledge  of  the  whole  system  of 
law ;  and  applied  the  legal  principles  to  any  case 
with  the  greatest  ease.  Yet  as  a  judge,  he  had  such 
a  veneration  for  that  system  of  jurisprudence  which 
had  been  settled,  and  he  was  so  strongly  impressed 
with  the  necessity  of  adhering  to  it  as  a  system,  that 
no  judge  was  ever  more  careful  to  adhere  to  the  prin- 
ciples settled  by  decided  cases. 

During  the  time  that  he  was  last  chief  justice,  he 
found  that  the  court  had  previously  put  a  construc- 
tion upon  certain  statutes,  which  did  not  accord  with 
his  views ;  yet  he  felt  himself  bound  by  former  de- 
cisions. In  an  action  of  ejectment,  one  of  the  par- 
ties rested  on  a  title  derived  from  a  vendue  sale  for 
the  collection  of  a  road  tax.  The  opposite  party 
contended  that  the  vendue  title  was  void,  the  direc- 
tions of  the  statute  not  having  been  pursued,  and 
cited  a  case  which  fully  supported  his  position.  The 
judge,  after  a  careful  examination  of  the  statute,  re- 


202  LIFE    OF    NATHANIEL    CHIPMAN. 

marked,  "Were  it  a  new  case  I  might  take  a  different 
view  of  it,  but  a  judicial  construction  has  been  put 
upon  the  statute  by  a  prior  decision,  which  ought 
not  to  be  set  aside,  especially  as  it  relates  to  the  title 
of  real  estate,  to  alter  the  law  by  giving  a  different 
construction  to  the  statute,  might  do  the  greatest 
injustice." 

Yet  if  on  a  careful  examination  of  a  decided  case, 
he  considered  that  the  settled  principles  of  law  had 
been  violated,  he  did  not  hesitate  to  deny  its  authority 
as  a  precedent.  In  delivering  his  opinion  in  the  case 
of  Rhodes  v.  Peisley,  decided  by  the  supreme  court  in 
the  year  1791,  he  denied  the  authority  of  the  case  of 
Moses  v.  McFarlan,  2  Burr.  1005,  going  no  further 
into  an  examination  of  it  than  the  case  under  con- 
sideration required.  He  stated  and  commented  upon 
the  case  as  follows :  "  Moses  indorsed  four  notes  to 
McFarlan  under  a  special  agreement  in  writing,  that 
McFarlan  should  indemnify  him  against  all  the  con- 
sequences of  such  indorsement.  McFarlan  brought 
his  actions  on  the  several  indorsements  against  Moses 
before  the  court  of  conscience,  an  inferior  court  of 
limited  jurisdiction.  The  court  refused  to  hear  evi- 
dence of  the  agreement,  and  rendered  judgment  in 
each  of  the  four  cases  against  Moses.  Moses  there- 
upon paid  the  amount  of  the  judgments,  and  brought 
his  action  for  money  had  and  received  against  Mc- 
Farlan, to  recover  back  the  money  which  had  been 
so  unjustly  received,  and  it  was  solemnly  decided  that 
the  action  will  lie.  This  is  to  say,  that  the  indorser 
is  holdcn,  and  he  is  not  holden.  The  evidence  which 
could  not  be  admitted  to  save  him  from  an  unjust  pay- 


LIFE    OF    NATHANIEL    CHIPMAN.  203 

ment,  could  be  admitted  and  was  deemed  amply  suffi- 
cient in  another  action  to  recover  back  the  identical 
money."  This,  it  is  believed,  was  the  first  time  that 
the  authority  of  the  case  Moses  v.  McFarlan  was 
questioned  by  any  court  in  Great  Britain  or  in  the 
United  States.  Four  years  afterwards,  in  the  year 
1795,  Lord  Chief  Justice  Eyre,  in  delivering  his  opin- 
ion in  the  case  of  Phillips  v.  Hunter,  2  H.B.  402, 
commented  upon  the  case,  Moses  v.  McFarlan,  say- 
ing, among  other  things,  "  In  that  case,  I  think  the 
agreement  was  a  good  defence  in  the  court  of  con- 
science ;  but  if  it  were  otherwise,  the  recovery  there 
was  a  breach  of  the  agreement  upon  which  an  ac- 
tion lay,  and  was,  in  my  judgment,  the  only  remedy. 
Shall  the  same  judgment  create  a  duty  for  the  recoverer, 
upon  ivhich  he  may  have  debt,  and  a  duty  against  him 
upon  which  an  action  for  money  had  and  received  icill 
lie  f  "  It  is  very  certain  that  there  could  have  been 
no  communication  between  these  two  judges ;  this 
renders  the  coincidence  of  thought  and  reasoning  very 
striking. 


CHAPTER  X. 

Appointed  Professor  of  Law  in  Middlebury  College — Delivered  a  comse 
of  Lectures  —  His  Work  on  Government  —  Adventures  of  his  son  Ed- 
win —  Sickness  and  Death  —  Conclusion. 

In  the  year  1816,  Mr.  Chipman  was  appointed  pro- 
fessor of  law  in  Middlebury  College,  and  the  year  fol- 
lowing delivered  a  course  of  lectures,  which  attracted 
considerable  attention  at  the  time,  but  they  were 
never  published.  Some  of  these,  most  interesting  to 
the  general  reader,  will  be  found  in  the  Appendix, 
Nos.  II.  III.  IV.  and  V. 

I  also  find  among  his  papers  a  manuscript  pam- 
phlet, entitled,  "  Observations  on  Mr.  Calhoun's  Ex- 
pose of  his  Nullification  Doctrines,  containing  an  ac- 
count of  the  origin  of  the  two  great  political  parties, 
federal  and  anti-federal,  with  an  impartial  history  of 
these  parties,  and  as  it  also  contains  a  very  clear  refu- 
tation of  Mr.  Calhoun's  arguments  or  positive  asser- 
tions, it  cannot  but  be  useful.  I  therefore  give  it  a 
place  in  the  Appendix,  No.  VI. 

In  the  year  1833,  he  published  a  work  on  govern- 
ment, entitled,  "  Principles  of  Government,"  a  trea- 
tise on  free  institutions,  including  the  constitution  of 
the  United  States. 


LIFE    OF    NATHANIEL    CHIPMAN.  205 

From  the  following  preface  to  the  work,  the  reader 
will  learn  the  design  of  the  author,  and  something  of 
the  manner  in  which  he  has  treated  the  subject. 

"  The  subject  of  government  has  employed  the  pens 
of  the  first  philosophers  of  every  age,  from  the  time 
of  Plato  and  Aristotle  to  the  present  day.  To  them 
the  world  are  much  indebted,  especially  to  some  of 
the  moderns.  None  of  them,  however,  as  far  as  re- 
collection serves,  have  attempted,  or  at  least,  have 
succeeded  in  an  investigation  of  first  principles ;  in 
analyzing  the  social  nature  of  man,  and  deducing 
from  the  relations  thence  resulting,  the  principles  that 
ought  to  be  pursued  in  the  formation  of  civil  insti- 
tutions ;  and  yet  it  is  believed,  this  is  the  only  cer- 
tain ground  of  investigation,  the  only  mode  in  which 
any  general,  consistent,  and  practical  principles  in 
the  science  of  government  can  be  established.  The 
greater  number  of  those  who  have  written  on  this  sub- 
ject have  employed  themselves  in  illustrating  and  re- 
commending the  principles  and  form  of  some  govern- 
ment, for  which  they  had  conceived  a  predilection  ; 
while  others,  in  their  theories,  have  consulted  the 
imagination  rather  than  the  understanding.  It  will, 
therefore,  be  readily  perceived  that  the  theories  and 
principles  of  neither  class  of  these  writers  can  be  of 
general,  much  less  of  universal  application  ;  that  they 
cannot  be  applied,  at  least,  indiscriminately,  to  gov- 
ernments of  different  construction,  and  embracing 
different,  and,  in  many  respects,  opposite  principles. 
Such  are  the  civil  and  political  institutions  of  these 
United  States ;  they  differ  in^rinciples  and  construc- 
tion very  essentially  from  all  that  have  preceded  thern. 

26 


206  LIFE    OF    NATHANIEL   CHIPMAN. 

The  author  convinced  of  that  difference  of  principles 
and  the  excellence  of  our  institutions,  owing  chiefly 
to  that  difference,  published  as  early  as  the  year  1793, 
a  small  work,  entitled,  '  Sketches  of  the  Principles 
of  Government;  with  a  view  of  briefly  illustrating 
the  Principles  on  which  they  are  founded.'  That 
little  work,  which  was  well  received  at  the  time,  has 
long  been  out  of  print. 

"  The  author  had  entertained  a  design,  as  no  trea- 
tise had  appeared  fully  embracing  the  subject,  of  pub- 
lishing a  revised  edition  of  that  work  ;  but  on  a  review, 
he  found  it  too  limited  in  its  plan,  as  well  as  deficient 
in  arrangement.  He  therefore  resolved  to  new-cast 
the  whole,  to  enlarge  the  plan,  to  give  it  a  more  regu- 
lar and  scientific  arrangement,  and,  as  far  as  he  was 
capable,  to  make  it  an  elementary  treatise  on  that 
kind  of  government  which  has  been  adopted  in  these 
United  States.  In  the  execution  of  this  task,  although 
the  work  consists  principally  of  new  and  additional 
matter,  the  author  has,  in  several  instances,  admitted 
portions  of  his  former  work,  with  such  corrections  as 
were  suggested  by  a  long  course  of  observations  and 
experience. 

"  He  has  enjoyed  many  advantages  favorable  to  the 
accomplishment  of  his  design  ;  he  has  been  an  atten- 
tive observer  of  passing  events,  and  not  un frequently 
an  actor  in  the  political  scenes  that  have  occurred  in 
a  period  of  more  than  half  a  century,  commencing 
with  the  controversy  between  the  states  (then  colo- 
nies,) and  the  mother  country,  which  eventuated  in 
their  independence,  and,  finally,  in  the  establishment 
of  the  present  government  on  the  true  principles  of 


LIFE    OF    NATHANIEL    CHIPMAN.  207 

freedom  —  a  period  agitated  and  occupied  with  revo- 
lutions and  revolutionary  movements,  which  have  ex- 
tended, with  various  effects,  to  all  the  civilized  nations 
of  Europe,  and  the  whole  of  the  American  continent, 
and  which  have  produced  a  more  thorough  investiga- 
tion and  discussion  of  the  social  and  individual  rights 
of  man,  and  the  nature  and  principles  of  free  govern- 
ments, than  is  to  be  found  in  any  other  age,  indeed, 
than  in  all  preceding  ages  within  the  reach  of  history. 
With  what  success  the  work  has  been  executed  must 
be  left  to  the  decision  of  the  public.  Such  a  work 
adapted  to  the  civil  and  political  institutions  of  the 
country  has  been  hitherto  a  desideratum,  which  it  was 
the  author's  ambition  to  supply.  If,  however,  he  has 
failed  in  this,  it  will  be  a  sufficient  consolation,  should 
what  he  has  attempted  excite  some  writer  of  more 
leisure,  and  of  a  higher  order  of  talents,  to  accom- 
plish the  task,  although  now  at  the  advanced  age  of 
fourscore,  he  can  hardly  expect,  personally,  to  enjoy 
that  consolation. 

"  The  author  has,  throughout  the  whole,  endeavored 
at  the  investigation  of  natural  principles,  and  to  fol- 
low truth  wherever  it  led  ;  he  has  several  times  been 
induced  to  differ  from  the  opinions  of  some  writers  of 
the  first  talents  and  reputation. 

"  Although  he  has  examined  these  opinions  with  the 
freedom  of  philosophical  discussion,  it  has  been  his 
constant  aim  to  treat  the  writers  with  that  decent  re- 
spect which  they  merit  from  every  lover  of  science. 

"  As  to  the  manner  and  style  of  the  work,  if  it  should 
be  thought  that  they  savor  of  former  times,  the  apo- 
logy is,  that  the  author  himself  more  properly  belongs 
to  an  age  that  is  now  past." 


208  LIFE    OF    NATHANIEL    CHIPMAN. 

The  author  has,  in  a  very  lucid  manner,  accom- 
plished what  he  proposed  in  the  preface.  He  has 
analyzed  the  moral  and  social  nature  of  man,  and 
thence  deduced  the  principles  which  lie  at  the  foun- 
dation of  our  free  institutions.  It  seems,  therefore, 
that  the  work  is  a  proper  foundation  for  instruction  in 
the  science  of  free  government. 

He  had  several  years  before  left  his  practice  at  the 
bar,  and  declined  all  public  business  on  account  of 
his  increased  deafness,  living  in  retirement,  undis- 
turbed in  the  exercise  of  his  intellectual  powers.  I 
find  by  his  papers,  that  he  had  turned  his  attention  to 
various  branches  of  science,  but  prepared  nothing  for 
publication,  except  on  the  science  of  law  and  gov- 
ernment. 

Nathaniel  Chipman  married  Sarah  Hill,  of  Tin- 
mouth,  by  whom  he  had  five  sons  and  two  daughters. 
His  eldest  daughter,  Laura,  married  Dr.  John  Brown- 
son,  who  settled  in  Western  New  York,  where  he 
died  some  years  since,  and  where  his  widow  and 
children  now  reside.  His  youngest  daughter,  Evelina, 
is  unmarried. 

His  eldest  son,  Henry  Chipman,  was  educated  at 
Middlebury  College,  and  maintained  a  high  standing 
as  a  scholar.  He  afterwards  studied  law  with  Charles 
Cotesworth  Pinckney,  of  Charleston,  South  Carolina, 
and  settled  in  Waterborough,  in  that  state,  in  the  prac- 
tice of  law,  where  he  married  and  resided  a  number 
of  years.  At  length,  being  disgusted  with  slavery,  and 
as  his  wife,  although  the  daughter  of  a  planter,  and 
accustomed  to  slavery  from  her  infancy,  was  de- 
sirous to  live  in  a  free  state,  where  they  should  not 


LIFE    OF    NATHANIEL    CHIPMAN.  209 

be  compelled  to  employ  slaves,  he  moved  to  Detrpit, 
in  the  then  territory  of  Michigan.  He  was  soon  after 
appointed  a  judge  of  the  United  States  court  for  that 
territory,  and  is  now  a  judge  of  the  municipal  court 
in  Detroit.  Jeffrey  Chipman,  his  second  son,  re- 
ceived an  academic  education,  married  and  settled  in 
Canandaigua,  in  the  state  of  New  York,  where  he 
still  resides.  Edwin  Chipman,  his  third  son,  studied 
law  with  his  brother  Henry,  in  South  Carolina,  was 
admitted  to  the  bar,  and  commenced  practice  in  con- 
nection with  his  brother.  But  he  soon  relinquished 
the  practice,  and  undertook  to  erect  mills  on  a  stream 
in  the  vicinity  of  Waterborough.  Being  nearly  desti- 
tute of  capital,  he  soon  found  himself  embarrassed 
with  debts,  which  he  was  wholly  unable  to  pay. 
While  in  this  situation  he  was  all  at  once  missing, 
and  under  circumstances  which  rendered  it  extremely 
doubtful  whether  he  had  absconded,  or  had  been 
drowned  in  the  stream  on  which  he  had  been  erecting 
mills.  But  year  after  year  having  passed  away,  and 
nothing  heard  from  Edwin,  either  by  his  father  or 
any  of  his  relatives,  his  father  became  satisfied  that 
he  was  not  living,  and  gave  him  up  as  lost,  until  Oc- 
tober, 1838,  when  the  postmaster  in  Rutland,  Ver- 
mont, received  the  following  letter : 

Wetumpka,  Coosa  County,  Alabama,  August  10,  1838. 

Sir,  —  Not  having  the  pleasure  of  your  acquaint- 
ance, or  even  of  knowing  your  name,  I  can  address 
you  only  by  your  official  appellation  on  a  subject 
which  intimately  concerns  another  individual.  The 
object  of  the  application  is  to  obtain  precise  informa- 


210  LIFE    OF    NATHANIEL    CHIPMAN. 

tion  respecting  the  Honorable  Nathaniel  Chipman. 
As  the  family  was  of  some  distinction,  it  is  probable 
you  can,  without  much  trouble,  ascertain  their  present 
situation,  and  where  the  different  members  of  the 
family  reside,  and  whatever  you  may  learn  interesting 
to  a  near  relative.  It  is  probable  that  Judge  Chip- 
man  and  Mrs.  Chipman  are  both  numbered  with  the 
dead ;  for,  if  living,  they  must  have  reached  a  very 
advanced  age.  As  Judge  Chipman  once  resided  in 
Rutland,  and  not  far  from  that  place  when  the  indi- 
vidual referred  to  was  last  heard  from,  it  is  proba- 
ble that  a  person  in  your  situation  may  know  some 
member  of  the  family,  or  give  such  information  as 
will  enable  the  person  interested  to  correspond  with 
him  by  letter.  By  making  the  necessary  inquiries, 
and  communicating  the  resulting  information  to  me 
at  Wetumpka,  Coosa  county,  Alabama,  you  will  con- 
fer a  pecular  favor  on  the  individual  at  whose  request 
I  trouble  you  with  this  communication. 

John  R.  Steele. 

Postmaster,  Rutland,  Vermont. 

P.  S.  As  I  may  be  from  home  when  your  letter 
shall  reach  Wetumpka,  please  direct  to  John  R. 
Steele,  care  of  Col.  Edward  Cullen,  Wetumpka, 
via  Augusta,  Georgia,  and  Montgomery,  Alabama. 

J.  R.  Steele. 

The  foregoing  letter  was,  by  the  postmaster,  put 
into  the  hands  of  the  late  Colonel  Gove,  of  Rutland, 
who.  suspecting  that  it  was  written  by  the  lost  son, 
Edwin,  immediately  wrote  agreeably  to  the  request  of 
John  EL  Steele,  stating  such  fncts  in  relation  to  Judge 


LIFE    OF    NATHANIEL    CHIPMAN.  211 

Chipman  and  his  family,  as  then  occurred  to  him.  A 
few  days  after  this,  Judge  Chipman  was  at  Rutland, 
and  on  reading  the  letter  from  John  R.  Steele,  was 
satisfied  that  Edwin  yet  lived,  and  wrote  the  letter ; 
and  immediately  wrote  to  John  R.  Steele,  giving  the 
desired  information  relating  to  himself  and  family; 
carefully  avoiding  anything  which  might  disclose  the 
suspicion  that  he  was  writing  to  his  son  Edwin.  This 
letter,  with  that  written  by  Colonel  Gove,  were  both 
delivered,  at  the  same  time,  by  the  postmaster,  and 
Edwin  wrote  an  answer  to  the  letter  from  Colonel 
Gove,  who  forwarded  it  to  Judge  Chipman,  and  one 
week  afterwards,  and  after  the  high  degree  of  excite- 
ment had  subsided,  which  had  been  produced  by  the 
intelligence  that  his  father  lived  and  enjoyed  a  re- 
markable degree  of  health  for  a  man  of  his  age,  and 
by  direct  intelligence  from  his  loved  native  village, 
rendered  more  dear  to  him  by  his  long  exclusion  from 
it,  and  by  a  total  want  of  intelligence  from  it  for  so 
many  years,  —  he  wrote  the  following  letter  to  his 
father. 

Wetumpka,  Coosa  County,  Ala.,  Oct.  10,  1838. 

Dear  Father  —  On  the  third  instant,  at  the  post- 
office  in  this  place,  two  letters  from  Vermont  were 
handed  to  me,  one  from  yourself,  the  other  from  Jesse 
Gove,  Esq.,  in  answer  to  a  letter  addressed  to  the 
postmaster  at  Rutland,  in  the  name  of  John  R.  Steele. 
My  feelings  cannot  be  described,  when  at  the  sight  of 
the  superscription  of  one  of  the  letters,  I  recognized 
the  hand-writing  of  my  father,  who  I  had  believed  was 
not  living.  Your  letter  gave  me  the  only  intelligence 
which  I  have  had  from  any  of  my  relatives,  since  I 


212  LIFE    OF    NATHANIEL    CHIPMAN. 

left  South  Carolina,  in  1822.  I  did,  indeed,  hear  in- 
directly, that  you  were  about  to  move  to  the  territory 
of  Michigan.  Brother  Henry,  I  knew,  had  deter- 
mined on  moving  to  the  north,  without  having,  when 
he  left  Carolina,  on  his  second  northern  tour,  fixed 
on  any  particular  location,  so  that  I  knew  not  where 
to  address  any  individual  of  my  family.  Some  few 
years  after  I  left  Carolina,  I  heard  that  brother  Henry 
was  in  the  practice  of  law,  at  Charleston,  in  com- 
pany with  a  Mr.  Duncan,  and  I  addressed  a  letter  to 
him  at  that  place  ;  and  receiving  no  answer,  I  wrote 
to  the  postmaster  at  Charleston,  but  he  took  no 
notice  of  the  letter.  I  then  wrote  to  the  postmaster 
at  Middlebury,  hoping  that  uncle  Daniel  Chipman,  or 
some  of  his  family  might  then  reside  there,  and  that 
through  that  channel  I  might  be  enabled  to  corres- 
pond  with  some  of  my  own  family ;  but  I  received  no 
answer  to  this  letter,  and  all  my  attempts  to  open  a 
correspondence  with  some  of  my  family  having  proved 
fruitless,  and  thinking  that  in  all  human  probability 
my  parents  were  not  living,  I  made  no  further  at- 
tempts for  several  years  to  open  a  correspondence 
with  them.  But  at  length  reflecting  that  our  ances- 
tors were  somewhat  noted  for  their  longevity,  I  dwelt 
upon  that  fact  until  it  produced  a  considerable  degree 
of  confidence  that  my  parents  were  still  living,  and  1 
determined  to  make  one  more  effort  to  open  a  cor- 
respondence with  them,  and  I  have  great  reason  to 
be  thankful  that  I  have  been  successful.  I  presume 
you  know  the  circumstances  under  which  1  left  the 
vicinity  of  Waterborough,  in  South  Carolina.  I 
started  without  a  cent  of  money  —  my  horse,  saddle 


LIFE    OF    NATHANIEL    CHIPMAN.  213 

and  bridle,  and  wearing  apparel,  were  my  all.  I  rode 
seventy-five  miles  in  twenty-four  hours.  1  stopped 
in  Barnwell  district,  and  worked  at  the  blacksmith's 
trade,  as  a  journeyman,  one  year.  I  worked  in  that 
district  and  in  Hamburgh,  and  in  Augusta,  Georgia, 
about  four  years.  I  taught  school  in  Barnwell  one 
year,  during  which  year  I  married  a  Miss  Thomson, 
by  whom  I  have  had  five  children,  four  of  whom  are 
living.  Soon  after  my  marriage,  I  removed  to  Mont- 
gomery county,  Alabama,  and  carried  on  the  black- 
smith's business,  realizing  a  handsome  profit.  I  also 
made  some  money  by  speculating  in  prairie  lands. 
But  the  delicate  health  of  my  wife,  and  several  years 
sickness  suffered  by  myself,  compelled  me  to  sell  my 
property  to  pay  my  debts.  In  the  year  1836,  I  left 
my  family  in  Montgomery  county,  and  went  to  Coosa 
county  in  the  Creek  country,  with  a  stock  of  goods  to 
trade  with  the  Indian  and  white  settlers.  After  a  few 
months  the  Indians  became  troublesome,  and  meas- 
ures were  taken  to  protect  the  settlers.  The  Mont- 
gomery regiment  was  called  out,  in  which  I  held  a 
commission  of  lieutenant  colonel  —  and  had  the  com- 
mand of  the  forces  until  the  Indians  were  subdued, 
when  I  moved  my  family  to  Coosa  county,  where  I 
now  reside.  During  the  last  two  or  three  years  1 
have  accumulated  considerable  property,  but  the  mo- 
ney pressure  has  rendered  it  difficult  to  close  my  bu- 
siness without  a  sacrifice.  Still  I  hope  to  get  through 
without  much  loss.  1  am  at  present  engaged  on  the 
railroad  between  the  Chatahoochy  river  at  West  point, 
and  the  Alabama  at  Montgomery,  and  am  located,  at 


214  LIFE    OF    NATHANIEL    CHIPMAN. 

present,  near  Fort  Decatur,  on  the  Talapoosa  river, 
in  Macon  county. 

You  say  that  my  dear  mother  has  been  dead  seven 
years.  My  mind  has  long  been  prepared  for  the  sad 
tidings,  but  the  reflection  that  her  days  had  been 
embittered  by  my  mysterious  absence,  and  the  uncer- 
tainty of  my  fate,  has  lain  heavily  on  my  mind.  I 
will  not  undertake  to  describe  my  sufferings  whenever 
I  have  realized  the  intensity  of  her  parental  affection, 
and  that  her  mind  was  somewhat  inclined  to  melan- 
choly foreboding. 

Mr.  Gove  writes  that  Dr.  Brownson  is  dead,  and 
that  Laura  is  keeping  house  with  her  children  in  Wes- 
tern New  York.  Do  write  particularly  respecting  all 
my  brothers  and  sisters  and  their  children,  as  far  as 
your  knowledge  of  them  extends,  and  remember  me 
affectionately  to  them  all.  I  have  four  children  living. 
Theodore,  ten  years  of  age  ;  Oscar,  eight ;  Evelina, 
five,  and  Edwin  Chipman  Cullen,  aged  two  years  — 
all  healthy  and  promising.  When  I  left  Colleton  dis- 
trict, in  South  Carolina,  I  adopted  the  name  of  Ed- 
ward Cullen,  and  am  known  by  no  other  name  in 
Alabama.  The  object  of  adopting  that  name,  and 
working  at  the  blacksmith's  trade,  was  to  prevent  the 
possibility  of  discovery.  No  letter  can  reach  me  un- 
less directed  to  that  name,  Wetumpka,  Coosa  Co., 
Alabama.  It  has  always  been  my  intention,  as  soon 
as  I  could  acquire  the  means,  to  pay  off  all  demands 
against  me,  to  resume  the  name  of  Edwin  Chipman 
by  legislative  enactment,  which  would  be  necessary 
to  legalize  my  land  titles. 

Your  affectionate  son, 

Kdw  \i:d    (  Yi.u.n. 


LIFE    OF    NATHANIEL    CHIPMAN.  215 

Nathaniel  Chipman  had  a  strong  constitution,  and 
although  considerably  impaired  by  an  intense  applica- 
tion to  his  studies  and  a  want  of  exercise  during  his  col- 
legiate course,  a  more  active  life  in  the  army  restored  it. 
During  the  whole  of  his  after-life,  he  was  blessed  with 
a  vigorous  constitution  and  a  continued  state  of  health, 
interrupted  only  by  occasional  attacks  of  the  rheuma- 
tism, by  which  he  suffered  until  about  seventy  years 
of  age,  when,  as  he  remarked,  while  I  was  suffering 
under  a  severe  attack  of  that  complaint,  that  he  had 
outgrown,  or  rather  outlived  his  rheumatism,  and  it 
might  be  the  case  with  me.  During  the  remainder 
of  his  life  he  enjoyed  a  remarkably  uniform  state  of 
health  until  his  last  sickness.  On  the  13th  of  Febru- 
ary, 1843,  he  was  violently  attacked  with  a  conges- 
tion and  inflammation  of  the  lungs,  which  put  a 
period  to  his  existence  on  the  fifteenth  of  the  same 
month,  being  in  the  ninety-first  year  of  his  age. 

Dr.  Clarke,  the  attending  physician,  remarks,  "  that 
he  was  greatly  distressed  for  breath ;  the  most  part 
of  the  time  unable  to  speak,  and  at  times  appeared  to 
be  deprived  of  his  reason ;  yet,  at  intervals,  when  he 
appeared  conscious  of  his  situation,  the  mind  of  Judge 
Chipman  showed  itself  in  all  its  native  placidity  and 
calmness." 

Having,  in  the  preceding  pages,  portrayed  the 
character  of  Nathaniel  Chipman  as  a  public  man, 
and  in  doing  so,  set  forth  his  qualities,  both  intellect- 
ual and  moral,  by  which  he  was  enabled  to  fill  the 
various  public  stations  in  which  he  was  placed,  with 
so  much  honor  to  himself  and  usefulness  to  his  coun- 


216  LIFE    OF    NATHANIEL    CHIPMAN. 

try,  I  shall  conclude  with  a  few  brief  remarks  respect- 
ing his  temper  and  disposition,  which  contributed  so 
much  to  his  happiness  through  a  long  life.  His  pas- 
sioDS  were  naturally  strong,  as  is  too  often  the  case 
with  men  of  a  high  order  of  intellect,  but  very  early 
in  life  he  so  perfectly  subdued  them,  that  they  never 
thereafter  gave  him  the  least  disturbance.  He  was 
never  known  to  harbor  a  spirit  of  revenge  or  ill-will 
against  any  human  being.  He  used  to  remark  that  it 
was  very  singular  that  so  small  a  portion  of  men  could 
ever  learn  that  a  spirit  of  revenge  and  hatred  of  oth- 
ers, only  rendered  themselves  unhappy.  The  good- 
ness of  the  Creator,  he  said,  was  most  clearly  mani- 
fest, by  his  having  so  constituted  man  that  he  was  not 
necessarily  made  unhappy  by  the  enmity  of  others. 
Were  it  so  his  happiness  would  depend  not  on  his  own 
good  disposition,  but  on  the  disposition  of  others,  over 
which  he  has  no  control.  But  the  benevolent  Creator 
has  placed  it  in  the  power  of  each  individual  to  cherish 
feelings  of  benevolence  and  good-will  towards  even 
his  enemies,  and  so  never  be  rendered  unhappy  by 
their  enmity.  Although  most  distinguished  for  his 
intellectual  powers,  and  the  fund  of  general  know- 
ledge which  he  had  acquired,  yet  he  had  also  a  vein 
of  wit  and  humor,  which  rendered  him  a  pleasant  as 
well  as  instructive  companion.  He  was  also  a  man 
of  very  tender  feelings,  and  deeply  sympathized  with 
the  afflicted.  In  answer  to  a  letter  which  I  wrote  him 
in  October,  1810,  giving  him  information  of  the  loss 
of  our  daughter  Mary,  he  wrote,  "We  had  been  in- 
formed by  Susan  Stowell,  who  was  here  on  a  visit  last 
week,  of  the  death  of  your  daughter  Mary.     In  this 


LIFE    OF    NATHANIEL    CHIPMAN.  217 

affliction  I  sincerely  sympathize  with  you  and  her 
mother.  I  have,  in  the  course  of  my  life,  lost  three 
children,  but  all  in  infancy.  I  feel  that  this  is  very 
different  from  the  loss  of  a  child  in  the  bloom  of  life, 
and  the  subject  of  a  long  and  cherished  affection.  I 
was  much  concerned  for  the  effect  that  this  sudden 
loss  might  have  on  you,  as  well  as  her  mother,  in 
your  feeble  state  of  health,  but  am  happy  to  learn  that 
you  endure  the  affliction  with  a  becoming  degree  of 
fortitude  and  resignation." 

In  answer  to  a  letter  which  I  wrote  him  in  March, 
1841,  giving  an  account  of  the  death  of  our  eldest 
daughter,  Mrs.  Linsley,  he  wrote,  —  "I  received  your 
account  of  the  loss  of  a  second  beloved  daughter,  in 
the  course  of  a  few  months,  with  deep  sympathy.  I 
feel  it  not  the  less  sensibly  from  a  recent  dispensation 
of  Providence,  in  my  own  family.  I  had  just  received 
information  of  the  death  of  my  son  Edwin,  so  long 
lost,  and  lately  found  —  as  it  were,  restored  from  the 
dead.  I  had  been  induced  to  believe  that  he  was  no 
longer  living  from  his  long  silence,  having  received 
no  answer  to  three  letters  which  I  had  written  him 
since  September,  1 839.  About  the  first  of  last  month 
I  received  information  from  a  gentleman  who  lived 
not  far  from  Edwin's  residence,  that  he  came  to  his 
death  about  fourteen  months  before,  being  caught  and 
instantly  killed  by  a  machine  which  he  had  invented, 
and  with  which  he  was  levelling  timbers  on  a  railroad. 
Though  the  event  was  expected,  the  unexpected  man- 
ner of  his  death  gave  poignancy  to  the  effect  on  my 
mind.  But  I  have  long  since  learned  to  submit  with- 
out a  murmur  to  the  dispensations  of  Providence,  be- 


213  LIFE    OF    NATHANIEL    CH1PMAN. 

lieving  that  they  are  all  in  mercy,  however  it  may 
Feem  to  us  in  the  moment  of  bereavement."  This  was 
not  with  a  mere  compliance  with  customary  forms  — 
possibly  he  too  often  disregarded  customary  forms  — 
but  it  was  written  from  a  most  abiding  sense  of  a  su- 
perintending Providence,  and  of  his  accountability  for 
all  his  thoughts  and  all  his  actions,  and  as  he  habitu- 
ally pursued  the  dictates  of  an  enlightened  conscience 
he  never  had  occasion  to  conceal  his  sentiments  — 
he  never  learned  how  to  put  on  any  disguise,  but  al- 
ways expressed  his  sentiments  openly  and  frankly. 
How  different  from  many  of  the  present  political  gen- 
eration ! 


APPENDIX. 


No.  1. 
A  DISSEBTATION 

ON    THE    ACT 

ADOPTING    THE    COMMON    AND    STATUTE    LAWS 
OF    ENGLAND. 


28 


DISSERTATION. 


The  reasons  for  passing  this  act  are  contained  in  the  fol- 
lowing preamble. 

"  Whereas  it  is  impossible,  at  once,  to  provide  particular 
statutes,  applicable  to  all  cases  wherein  law  may  be  neces- 
sary for  the  happy  government  of  this  people  :  And  whereas 
the  inhabitants  of  this  state  have  been  habituated  to  conform 
their  manners  to  the  English  laws,  and  hold  their  real  estates 
by  English  tenures." 

By  the  first  section  it  is  enacted,  "  That  so  much  of  the 
common  law  of  England  as  is  not  repugnant  to  the  constitu- 
tion, or  to  any  act  of  the  legislature  of  this  state,  be,  and  is 
hereby  adopted,  and  shall  be,  and  continue  to  be,  law  within 
this  state." 

By  the  common  law  of  England,  exclusive  of  positive 
laws  enacted  by  statute,  are  understood  those  rules  and 
maxims,  by  which  decisions  are  made  in  their  courts  of  law, 
whether  in  relation  to  the  mode  of  prosecuting  a  right,  or  to 
the  right  itself—,  rules  and  maxims,  which  have  been  there 
adopted,  "  time  whereof  the  memory  of  man  runneth  not  to 
the   contrary."     For  a  knowledge  of  the  common  law  of 


224  APPENDIX. 

England  we  must  have  recourse  to  1  lie  history  of  their  law 
proceedings,  handed  down  In  almosl  innumerable  volumes 
of  reports,  and  to  the  writings  of  the  sages  of  their  law. 

The  foregoing  statute,  adopting  the  common  taw  of  Eng- 
land, in  this  stale  has  rendered  a  knowledge  of  that  law  in- 
dispensable in  our  courts.  This  statute  expressly  limits  the 
adoption  of  the  common  law,  to  so  much  as  is  not  repug- 
nant to  the  constitution,  or  any  act  of  the  legislature  of  this 
state.  By  this  limitation,  all  that  part  of  the  common  law, 
which  relates  to  the  royal  person,  family,  and  prerogative  ; 
;ill  which  relates  to  the  peerage,  their  privileges  and  preemi- 
nence, is  excluded.  We  have,  strictly  speaking,  no  common 
law  officers;  all  the  offices  in  tins  state  are  established, 
and  the  duties,  in  general  terms,  pointed  out  by  the  consti- 
tution, or  by  statute.  The  terms  and  expressions,  adopted 
in  both,  are  frequently  derived  from  the  common  law.  The 
office  of  sheriff,  for  instance,  is  contemplated  in  the  constitu- 
tion, and  established  by  statute.  His  power  and  duties  are 
pointed  out,  generally  by  statute  :  these  are,  mostly,  the 
Mime  as  those  of  a  sheriff  in  England;  yet  these  powers 
and  duties  are  derived  from  the  constitution  and  statutes  of 
this  state,  and,  limited  by  them,  the  manner  in  which  these 
shall  be  exercised,  if  not  pointed  out  by  our  laws,  must  be 
learned  from  the  common  law  of  England,  so  far  as  adopt- 
ed here  ;  as,  the  manner  of  an  arrest — what  shall  be  deemed 
an  escape. 

From  the  different  constitution  of  our  courts,  the  English 
mode  of  practice  can,  in  very  few  instances  be  adopted; 
Ihii  their  rules  may,  in  most  instances,  he  applied  in  deter- 
minations on  pleas  and  pleadings ;   in  the  construction  of 


APPENDIX.  225 

words  and  of  laws  ;  in  almost  every  instance,  which  can 
arise  in  our  state  of  society,  between  individuals,  on  torts, 
frauds,  or  contracts. 

It  will  be  much  more  restricted  in  cases  arising  on  our 
landed  titles.  Many  of  those  titles  were  derived  from  the 
king  of  Great  Britain,  and  many  conveyances  made,  while 
under  British  laws  and  government.  Their  validity  and 
operation  must  be  decided  by  the  laws  under  which  they 
were  derived  and  made.  But  our  landed  property  has  suf- 
fered a  great  alteration  by  the  revolution.  It  has  been 
changed  in  the  hands  of  the  owners,  from  estates  in  fee,  into 
allodial  estates,  holden  no  longer  even  in  idea  of  a  supe- 
rior. 

The  mode  of  descent,  and  right  of  inheritance,  depend 
entirely  on  our  statutes  ;  while  the  degrees  of  affinity  and 
consanguinity  are  to  be  learned  from  the  common  laws  of 
England.  The  Avhole  chapter  of  entails  is  abridged  —  per- 
haps expunged  —  in  a  word  all  the  consequences  of  the  feu- 
dal tenure  are  abolished  —  a  tenure  once  very  general  in 
Great  Britain,  the  traces  of  which  are  still  visible  in  all  their 
laws  relative  to  landed  property,  and  which  introduced  rules 
and  maxims,  full  of  absurdity  and  oppression  —  rules  and 
maxims  which  there  still  operate,  more  or  less,  although  the 
reason  of  their  introduction  has  long  ceased.  That  part  of 
the  common  law,  which  arose  from  the  adoption  of  the  canon 
law,  has  shared  the  same  fate. 

I  have  given  these  instances  by  way  of  example  only.  It 
is  not  my  design  to  enumerate  every  instance,  in  which  the 
common  law  of  England  is  to  be  applied  in  this  state,  or  in 
which  it  is  excluded  or  restricted.     It  will  be  of  more  use 


226  APPENDIX. 

to  discover  some  general  principles,  which  may  enable   us 
to  distinguish  properly  in  our  applications. 

The  common  law  of  England  is  a  system  of  rules,  sup- 
ported by  precedents,  handed  down  from  remote  antiquity. 
These  preeedcnts  have,  by  the  body  of  the  law,  as  is  common 
enough  with  professional  men,  been  held  in  too  great  vene- 
ration. 

A  number  of  precedents,  in  point,  however  obscure  or  un- 
certain the  principles  upon  which  they  were  founded,  have 
been  held  fully  decisive  of  a  similar  question  ;  and  yet  many 
of  these  precedents  were  made  at  a  time,  when  the  state  of 
society  and  property  were  very  different  from  what  they 
are  at  present ;  in  an  age  when  the  minds  of  men  were  fet- 
tered in  forms  ;  when  forms  were  held  to  be  substances,  and 
abstractions  real  entities.  Technical  reasoning  and  un- 
meaning maxims,  of  course,  frequently  supplied  the  place  of 
principles.1 


1  "  Solvatur  eo  ligamine,  quo  ligalur,"  literally,  "Let  it  be  loosened 
by  the  same  tie  by  which  it  is  bound."  This  pompous,  unmeaning 
maxim  u;is  introduced  from  the  civil  law.  Tying  and  untying,  binding 
and  loosing,  are  different  operations,  connected  only  by  the  subject,  and 
may  be  performed  by  different  means  and  different  powers.  There  is  no 
kind  of  similarity  between  them.  By  a  forced  application  of  this  unmean- 
ing maxim,  many  an  obligor  has  been  condemned  to  a  second  discharge 
of  his  obligation,  although  able  to  make  indubitable  proof  of  a  former  dis- 
charge, differing  from  his  contract  only,  in  some  immaterial  circumstance, 
tu  the  full  acceptance  of  the  obligee  ;  and  this  because  he  could  not  make 
his  proof  by  an  instrument  of  the  same  kind  with  that  by  which  he  was 
hound.     Lord  Karnes  has  somewhere  nearly  the  same  observations. 

Let  me  here  add  an  instance  of  a  different  kind.  The  whale  was  a  royal 
fish.  The  head  was  allotted  to  the  king  ;  the  tail  to  the  queen.  Lex  est 
summa  ratio.  Law  is  the  perfection  of  reason.  A  reason  must  be 
given  for  this  allotment.     Say  the  ancient  lawyers  with  much  gravity, 


APPENDIX.  227 

Society  was  in  a  state  of  melioration.  Manners  and  sen- 
timent progressed  towards  refinement.  Intercourse  between 
individuals,  as  well  as  nations  began  to  be  extended,  and  in 
same  measure,  secured  the  rights  of  property,  and  the  rights 
of  commerce  were  investigated,  and  better  understood. 

The  clouds  which  had  long  hung  over  the  reasoning  facul- 
ties, began  to  be  dispersed  ;  principles  were  examined  and 
better  established.  Cessante  ralione,  cessat  el  ipsa  lex.  When 
the  reason  of  a  law  ceases,  the  law  itself  ceases,  was  adopt- 
ed as  a  maxim  of  the  common  kuv  ;  for  in  those  times, 
nothing  could  be  decided  or  altered,  without  a  precedent  or 
a  maxim.  By  the  application  of  this  maxim  some  prece- 
dents which  were  originally  absurd,  and  some  which  had 
become  inapplicable,  through  a  change  of  times  and  circum- 
stances, were  set  aside.  The  progress,  hoAvever,  was  slow. 
Men  correct  or  give  up  with  reluctance  those  things  which 
have  cost  much  pains  in  learning.  Many  such  precedents 
had,  however,  become  a  rule  of  property.  These  could  not 
be  shaken  by  the  judges,  without  the  greatest  injustice  to 
individuals. 

Upon  rules  and  precedents,  Judge  Blackstone  has  the  fol- 
lowing observations  :  "  Not  that  the  particular  reason  of 
every  rule  in  the  law  can,  at  this  distance  of  time,  be  always 
precisely  assigned  ;  but  it  is  sufficient  that  there  is  nothing 
in  the  rule  flatly  contradictory  to  reason  ;  and  the  law  pre- 
sumes it  well  founded."  And  again,  "  Precedents  are  to  be 
followed,  unless   flatly  absurd,  or  unjust :  for  though  their 

"  The  tail  was  given  to  the  queen  to  furnish  her  wardrobe  with  whale 

bone  ;  "  but  for  this,  as  whalebone  is  found    onlv  in   the  mouth  of  that 
fish,  she  must  have  been  still  beholden  to  the  king. 


J28  MM'KNDIX. 

reason  be  not  obvious  al  firsl  view,  yel  we  owe  such  a  def- 
erenee  to  formei  times,  as  not  to  suppose  they  acted  wholly 
without  consideration."  This  mighl  perhaps  be  well  enough 
in  England,  l>ut  the  principal  reasons,  there,  for  so  strict 
an  observance  of  precedents,  are  that  the  rules  of  law  may, 
from  their  permanent  uniformity,  be  the  better  known;  and 
lest  by  too  easy  a  departure,  judges  might  unwarily  disturb 
rights,  or  property  acquired,  transmitted  or  holden  OB  the 
faith  of  such  precedents.  If  no  reason  can  be  assigned,  in 
support  of  rules  or  precedents,  not  already  adopted  in  prac- 
tice, to  adopt  such  rules  is  certainly  contrary  to  the  principles 
of  our  government,  and  the  spirit  of  our  laws,  which  admit 
not  of  arbitrary  rules,  or  of  arbitrary  decisions,  even  in  mai- 
lers indifferent. 

We  can  readily  suppose  that  former  ages  did  not  act 
without  consideration  ;  we  can  believe  them  to  have  acted 
upon  principles  and  reasons,  which  arose  out  of  their  state 
of  societv  :  but  it  would  be  too  great  a  deference  to  concede 
to  them,  who  are  now  no  way  interested  in  the  concession, 
or  affected  by  it,  the  principles  and  reasons,  which  arise  out 
of  the  present  state.  It  is  much  more  just  to  them,  and 
to  ourselves  to  suppose,  that  good  reasons,  there,  existed, 
which  from  a    change    of    circumstances    have    long   since 

CCIKCll.1 


'  Determinations  of  law,  though  they  cannot  always  go  the  full  extent, 
ought  never  to  stand  opposed  to  the  nicest  sense  of  moral  obligation,  to 
the  principles  of  the  government,  or  what  ought  to  be  the  spirit  of  its 
laws.  In  adjusting  these,  we  should  act  more  wisely,  if  instead  of  enter- 
taining a  Mind  veneration  for  ancient  rules,  maxims  and  precedents,  we 
could  learn  to  distinguish  between  those  which  arc  founded  on  the  prin 
piples  of  human  nature  in  society,  which  are  permanent  and  universal, 


APPENDIX. 


229 


It  was  a  rule,  that  if  a  statute  be  made,  altering  the  com- 
mon law,  and  a  statute  come  after,  repealing  the  former 
statute,  the  common  law  revives.  But  it  ought  to  be  under- 
stood with  this  limitation,  if  the  common  law  be  founded  on 
principles  still  existing  in  the  present  course  of  justice. 

Legal  right  and  wrong,  particularly  in  criminal  jurispru- 
dence, have  an  intimate  relation  to  the  constitution,  princi- 
ples, and  circumstances  of  the  government.  There  will  be 
a  coincidence  between  the  principles  of  the  government,  the 
spirit  of  its  criminal  law,  and  the  mode  of  interpretation  and 
execution. 

The  British  government,  which  has  ever  been  a  mixture  of 
monarchy,  aristocracy,  and  democracy,  has  principles  pecu- 
liar to  that  government.  The  monarchical  principles  have 
a  silent,  but  uniform  influence  on  their  criminal  jurispru- 
dence.1 


and  those  which  are  dictated  by  the  circumstances,  policy,  manners, 
morals  and  religion  of  the  age. 

'Many  instances  might  be  given  of  the  influence  of  feudal,  monarchical, 
and  aristocratical  principles  on  the  decisions  of  the  English  law.  The 
following  are  selected  as  examples. 

Homicide  per  infortunium ;  or  the  killing  of  a  man  by  misadventure,  is 
held  to  be  a  crime.  The  manslayer  is  indeed  pardoned  of  course;  but  he 
forfeits  his  goods  to  the  king;  because,  says  the  law,  the  king  has  lost  a 
subject.  This  is  evidently  of  feudal  original.  The  forfeiture  was  at 
first  intended  as  a  reparation  to  the  king  for  the  loss  of  a  vassal. 

The  absurd  doctrine  of  deodands,  which  still  disgraces  the  English 
laws,  was  derived  from  the  superstition  of  the  times  ;  but  is  now  consid- 
ered as  a  prerogative  right. 

By  attainder,  the  blood  of  the  person  attainted  is  supposed  to  be  cor- 
rupted, and  to  have  lost  every  inheritable  quality.  The  king  may  pardon 
the  person  attainted,  and  make  him  a  new  man,  but  cannot  restore  his  for- 
mer inheritable  connections,  or  prevent  an  escheat  to  the  lord. 

A  son  born  before  the  attainder  shall  never  inherit  to  this  new  man  . 
29 


230  APPENDIX. 

At  the  time  when  the  common  law  was  growing  into  a 
system  by  means  of  precedents,  the  judges  were  solely  de- 
pendent on  the  crown.  Monarchy  procures  obedience  no 
less  by  fear  than  by  the  principle  of  honor.  The  highest 
orders  in  the  government,  and  the  most  aspiring  characters, 
are  influenced  by  the  prospect  of  attaining  honors.  The 
multitude  are  restrained  by  fear.  The  manners  of  people  are 
rough,  and  little  short  of  savage.  From  all  these  circum- 
stances their  punishments  become,  in  many  instances,  shock- 
ingly severe.  Whether  it  be  owing  to  the  force  of  habit,  to 
the  influence  of  the  monarchical  and  aristocratical  principles 
in  their  government,  or  both,  modern  refinement  of  man- 
ners, modern  delicacy  of  sentiment,  has  prevailed  very  little 
to  soften  that  severity.  Their  laws,  like  those  of  Draco,  may 
emphatically  be  said  to  be  written  in  blood.  They  have 
about  one  hundred  and  fifty  capital  offences.  These  are, 
mostly,  created  or  confirmed  by  statute  ;  but  some  are  still 
crimes  at  common  law  only. 

The  government  of  this  state  is  that  of  a  democratic  re- 
public. The  principle  of  this  government,  by  some  called 
virtue,  is  a  sentiment  of  attachment  to  its  constitution  and 
laws.  This  principle  dictates  moderation  in  the  enacting, 
in  the  interpretation  and  execution  of  its  laws.     Here  there 


his  after  acquisitions  shall  rather  escheat.  An  after-born  son  may  inherit ; 
but  not  if  there  be  any  former  son  living,  or  heir  of  such  son. 

The  following  rule,  which  was  adopted  in  a  matter  of  mere  civil  right, 
18  of  the  same  feudal  origin. 

The  brother  of  the  half-blood  shall  never  inherit  to  the  brother  of  the 
whole  blood.  The  fee  shall  rather  escheat  to  the  lord;  because,  by  the 
feudal  constitution,  the  descent  is  confined  to  the  whole  blood  of  the  first 
feudatory. 


APPENDIX.  231 

is,  perhaps,  some  danger,  lest,  through  the  influence  of  pre- 
cedents, the  courts  should  deviate  from  the  spirit  of  modera- 
tion, the  true  spirit  of  our  laws.  I  should  lay  it  down  as  an 
unalterable  rule,  that  no  court  in  this  state  ought  ever  to 
pronounce  sentence  of  death  upon  the  authority  of  a  common 
law  precedent,  without  the  express  authority  of  a  statute. 
"  All  fines,"  says  the  constitution,  "  shall  be  proportioned  to 
the  offences."  This  is  not  to  be  understood  of  pecuniary 
mulcts  only.  The  word  fines  is  here  to  be  taken  as  synony- 
mous to  punishments.  Taken  in  this  large  sense,  the  clause 
is  consonant  to  the  principles  and  spirit  of  our  government 
and  laws. 

Actions  which  are  criminal  of  England  may  not  be  so  in 
Vermont.  Civil  crimes  become  such  by  a  certain  relation 
to  the  society  where  they  are  committed. 

From  the  difference  of  the  relation  in  different  societies, 
the  same  action  may  be  either  not  criminal  at  all,  or  criminal 
in  a  different  degree.  Here,  cessante  ratione,  cessat  et  ipsa 
lex,  ought  to  be  applied,  whether  to  determine  an  action  not 
to  be  criminal,  or  to  be  criminal  in  a  less  degree.  Nay,  the 
principles  of  the  common  law,  winch  are  the  true  principles 
of  right,  so  far  as  discoverable,  are  competent  to  decide  on 
the  criminality  of  an  action,  which  shall  be  notoriously  and 
flagrantly  injurious  to  society  in  this  state  ;  although  such  an 
action  had  never  been  done,  or  even  heard  of  in  England  ; 
and  to  declare  a  punishment,  but  short  of  death. 

Lord  Mansfield  was  powerfully  attached  to  the  monarchi- 
cal and  aristocratical  principles  of  the  British  government. 
Whenever  these  intervened  in  a  cause,  they  had  great  influ- 
ence on  his  reasonings.     In  other  questions  merely  of  a  civil 


232  APPENDIX. 

nature,  he  was  a  great  and  a  good  judge.  No  judge,  perhaps, 
in  that  country,  ever  had  a  more  thorough  knowledge,  both 
of  the  principles  and  precedents  of  the  common  law.  J  lis 
judicial  opinion  may  he  considered  us  a  common  law  prece- 
dent in  the  construction  of  this  statute.  "  The  law  of  Eng- 
land "  says  he,  "  would  be  an  absurd  science  indeed,  were 
it  founded  upon  precedents  only.  Precedents  serve1  to  illus- 
trate principles,  and  to  give  them  a  fixed  certainty,  but  the 
law  of  England,  exclusive  of  positive  law,  enacted  by  stat* 
ute,  depends  upon  principles ;  and  these  principles  run 
through  all  the  cases,  according  as  they  fall  in  with  the  one 
or  the  other  of  them." 

We  may  then  lay  it.  down,  that  this  statute  gives  the  citi- 
zens of  this  state  the  rules,  maxims,  and  precedents  of  the 
common  law,  so  far  as  they  serve  to  illustrate  principles  — 
principles  only,  which,  from  the  situation  of  society  with  us, 
exisl  in  this  state;  but  does  not  impose  upon  them  those 
principles  which,  .from  the  particular  circumstances  of  that 
government,  exists  only  in  England. 

The  act  goes  on  to  recite  that,  "  Whereas  the  statute  law 
of  England  is  so  connected  and  interwoven  with  the  com- 
mon law,  that  our  jurisprudence  would  be  incomplete  with- 
out it ;  therefore  it.  is  enacted,  that  such  statute  laws,  and 
parts  of  laws  of  the  kingdom  of  England  and  Great  Britain,  as 
were  passed  before  the  first  day  of  October,  A.  D.  1760,  for 
the  explanation  of  the  common  law,  and  which  are  not  repug- 
nant to  the  constitution,  or  some  act  of  the  legislature,  and 
are  applicable  to  the  circumstances  of  the  state,  are  hereby 
adopted  and  made,  and  shall  be,  and  continue  to  be,  law 
within  this  state,  and  all  courts  are  to  take  notice  thereof 
and  govern  themselves  accordingly." 


APPENDIX.  233 

In  this  section,  the  words  "  and  are  applicable  to  the 
circumstances  of  the  state  "  render  any  comment  unneces- 
sary. Indeed,  though  these  words  are  not  expressed  in 
the  former  section  tamen  tacite  infant,  they  are  contained 
in  sense. 


No.  II. 


OF    LAW    IN    GENERAL. 


LECTURE     I. 


LECTURE    FIRST. 


In  entering  upon  a  course  of  legal  instruction,  it  will  be 
proper  to  take  a  general  view  of  the  origin  and  nature  of 
law,  as  well  as  to  define  the  limits  within  which  we  are  to 
proceed. 

Judge  Blackstone  tells  us  that,  "  law  in  its  most  general 
comprehensive  sense,  signifies  a  rule  of  action ;  and  is  ap- 
plied indiscriminately  to  all  action,  whether  animate  or  inani- 
mate, rational  or  irrational."  Such  is  the  sense  which  gen- 
eral custom  has  annexed  to  the  term.  Thus  when  we  speak 
of  the  laws  of  nature  in  reference  to  the  system  of  the  universe 
that  comes  under  our  knowledge,  we  mean  those  laws  by 
which  all  its  motions  and  operations  in  all  its  parts  are  pro- 
duced and  directed  in  an  unceasing  series,  regular,  orderly, 
and  uniform.  In  these  laws  of  nature  Ave  comprehend  not 
only  those  laws,  which  govern  mere  brute  matters,  whether 
organized  or  unorganized,  animate  or  inanimate,  but  those 
moral  laws  which  govern  the  actions  of  man  as  an  intelligent 
being.  Between  the  former  and  the  latter  there  is,  however, 
an  important  distinction.  In  the  former,  whether  we  suppose 
with  some  that  the  Creator  in  the  formation  of  the  universe, 
30 


238  APPENDIX. 

impressed  on  matter  certain  principles,  from  which  it  cannot 
depart,  without  ceasing  to  exist,  or  with  others,  that  according 
to  a  predetermined  plan,  the  movements  of  the  whole  system 
and  every  operation,  even  to  the  most  minute  in  the  physi- 
cal world,  are  carried  on  by  an  immediate  exertion  of  the 
Divine  agency  ;  yet  here  the  law  as  it  respects  the  subjects, 
is  a  law  not  of  obligation,  but  of  necessity.  The  subjects 
are  mere  passive  instruments,  without  consciousness,  will, 
intention,  or  power  of  resistance.  No  moral  consequences 
are  attached.  But  the  latter,  the  law  of  intelligent  being, 
by  which  I  mean  the  law  of  human  actions,  is  a  law  of  ob- 
ligation, not  of  necessity  ;  not  physical,  but  moral.  Man 
has  indeed  a  body  consisting  of  matter,  wonderfully  organ- 
ized, and  endued  with  animal  life.  Considered  as  an  animal, 
he  is  subject  to  the  physical  laws  of  which  we  have  been 
speaking ;  but  he  is  also  furnished  with  mind,  with  intelli- 
gence, with  a  faculty  by  which  to  attain  the  perception  of 
moral  relations,  in  which  he  finds  himself  placed ;  he  is  con- 
scious of  an  obligation,  or  perhaps  we  shall  be  as  distinctly 
understood  if  we  say,  he  intuitively  perceives  an  obligation  to 
perform  a  certain  act,  or  to  pursue  a  certain  course  of  action. 
This,  which  we  may  call  a  moral  perception,  is  found  to  be 
common  to  the  whole  human  race,  although  more  or  less 
clear  ;  more  or  less  comprehensive  in  different  men,  according 
to  their  different  susceptibilities,  and  opportunities  of  improve- 
ment. Hence  is  derived  the  general  notion  of  a  moral 
law,  which,  by  way  of  eminence,  is  called  natural  law,  or 
the  law  of  nature.  But  this  is  not  all  which  goes  to  con- 
stitute the  binding  force  of  a  law.  There  is  further  associ- 
ated the  notion  of  a  Supreme  Power,  rightfully  ordaining 


APPENDIX.  239 

the  law,  and  requiring  its  observance.  Without  this  I 
cannot  conceive  how  the  obligation  can  exist.  There  might 
arise  a  question  of  utility,  but  I  do  not  perceive  how  a  ques- 
tion of  duty  can  be  raised.  In  the  cause  of  natural  law, 
that  Supreme  power  is  perceived,  and  acknowledged  to  be 
the  great  Creator  of  the  universe,  who  made  man,  and  estab- 
lished him  in  a  situation  to  sustain  those  relations,  individual 
and  social,  from  which  his  duties  result,  and  which  point  out 
to  him  the  moral  laws  of  his  nature.  This  view  of  the 
subject  suggests  the  propriety  of  an  observation  of  Mr. 
Christian,  the  learned  annotator  of  the  Commentaries,  that 
law,  in  its  strict  sense,  is  applicable  only  to  human  conduct, 
or  at  least  to  the  conduct  of  subordinate  intelligences. 
Every  other  application  is  metaphorical.  In  all  cases  in 
physics,  with  strict  propriety,  for  law,  might  be  substituted 
qualiti),  property,  or  peculiarity.  We  sometimes  speak  of 
the  laws  of  Deity,  but  certainly  in  a  sense  very  different 
from  that  in  which  it  is  applied  to  man,  or  any  of  his  other 
creatines.  Wlien  we  say  that  the  Deity  carries  on  his  ope- 
rations by  certain  laws,  we  mean  this  only,  that  they  are 
carried  on  with  wisdom,  regularity,  and  order,  consummate 
and  undeviating.  His  will  only  can  be  his  law.  The  idea 
of  a  superior  ordaining  the  law  and  requiring  obedience, 
cannot  be  here  admitted  Avithout  obscurity  and  even  impiety. 
With  as  little  propriety  can  we  admit  of  the  phrase  when  we 
apply  the  word  law  to  the  operations  of  nature,  or  to  the 
works  of  art,  as  when  we  speak  of  the  laws  of  vegetation, 
of  attraction,  of  mechanism,  we  certainly  include  the  idea  of 
a  superior  Power,  who  has  established  the  principles  of  ope- 
ration in  each  case,  through  a  constant  and  regular  chain  of 


240  APPENDIX. 

causes  and  effects,  to  the  attainment  of  the  end  ;  but  here 
we  are  forced,  instead  of  obligation  and  obedience,  which 
includes  volition,  to  admit  necessity  ;  and  to  exclude  the 
ideas  essential  when  we  u<c  law  as  applicable  to  man,  of 
disobedience  and  punishment.  That  the  creature  is  neces- 
sarily subject  to  the  Creator ;  that  all  created  intelligences 
endowed  as  man  is,  with  free  will,  arc  under  the  most 
perfect  obligation  to  obey  the  will  of  the  Creator,  upon 
whom  they  are  absolutely  dependent,  is  an  intuitive  truth,  a 
subject  of  direct  perception  to  every  moral  being  capable  of 
understanding  the  proposition.  It  is  a  first  principle  in 
Ethics,  and,  like  every  other  first  principle,  is  not  left  to  be 
discovered  by  any  mere  process  of  reasoning.  The  great 
business  of  reason  is  to  assist  and  direct  in  the  application 
of  the  principle  to  human  conduct.  The  will  of  the  Creator 
is  in  like  manner  discovered  in  those  relations  which  he  was 
pleased  to  establish  in  the  moral  system  of  man,  by  an  intu- 
itive perception  of  their  result  in  moral  obligation,  the  duty 
of  obedience.  The  Divine  will  cannot  be  supposed  for  an 
instant  without  a  reference  to  these  relations  ;  much  less  can 
it  ever  be  supposed  to  stand  in  opposition  to  them,  or  to 
reverse  the  result. 

We  ought  here  to  take  notice  of  an  inaccuracy  of  Judge 
Blackstone's.  He  has  said  that  "  God  has  not  perplexed 
the  law  of  nature  with  a  multitude  of  abstracted  rules  and 
precepts,  referring  merely  to  the  fitness  or  unfitness  of 
things,  as  some  have  vainly  surmised,  but  has  graciously 
reduced  the  rule  of  obedience  to  one  paternal  precept, 
'That  man  should  pursue  his  own  true  and  substantial 
happiness."      Tins,  taken  in  the  sense  of  the  author,  is,  it 

appeal-    to   UK',    inaccurate   al    least. 


APPEiNDIX.  241 

There  may  be,  and  sometimes  is,  a  complexity  in  the 
relations,  a  difficulty  in  arranging  them,  and  giving  to  each 
its  due  weight  and  importance  hi  the  association.  When 
the  arrangement  is  properly  made,  the  result  is  clear,  the 
perception  of  what  is  duty  in  the  case  is  intuitive,  Avithout 
any  reference  to  the  supposed  fitness  or  unfitness  of  things. 
But  that  man  should  pursue  his  true  and  substantial  happi- 
ness, cannot  Avith  propriety  be  called  a  rule  or  precept. 
Man's  happiness  is  the  great  end  proposed  by  all  the  pre- 
cepts, the  sure  end  to  be  obtained  by  obedience.  To  call 
it  a  precept,  is  therefore  to  confound  the  law  with  the  end 
sought  to  be  effected  by  the  law. 

In  the  view  which  we  have  taken  of  the  subject,  the  law 
of  nature  has  its  foundation  in  the  will  of  God.  It  is  his 
will  manifested  to  man  in  his  works,  and  is,  as  Judge 
Blackstone  justly  observes,  "  binding  over  all  the  globe,  in 
all  countries,  and  at  all  times.  No  human  laws  are  of  any 
validity,  if  contrary  to  this  ;  and  such  of  them  as  are  valid 
derive  all  their  force,  all  their  authority  from  this  original." 

We  must  not  here  omit  the  law  of  revelation.  From  the 
imperfection  of  human  reason,  and  the  moral  powers  of 
man,  he  is  necessarily  subjected  to  imperfect  views  and  er- 
roneous conceptions.  God  has  therefore  been  pleased,  by 
an  immediate  revelation,  to  discover  to  man  those  laws 
and  these  duties,  a  knowledge  of  which  he  could  not  at 
all,  or  but  imperfectly,  attain  by  unassisted  reason;  and, 
although  it  has  been  justly  observed  that  the  laws  of  reve- 
lation are  found,  on  comparison,  to  be  a  part  of  the  original 
laws  of  nature,  tending,  in  all  their  consequences,  to  the 
felicity  of  man,  vet  it  ought  to  be  added  that,  as  revelation 


242  APPENDIX. 

discovers  to  man  more  clearly  his  relation  to  his  Maker, 
ami  the  duties  thence  arising;  opening  to  him  the  certain 
view  of  an  eternal  existence  beyond  the  present  state;  and 
pointing  out  the  means  of  securing  his  happiness  through- 
out thai  existence  ;  not  only  consistent  with,  but  promotive 
of  his  happiness  here;  it  oilers  considerations  which  must 
somewhat  affect  whal  we  have  called  the  original  laws  of 
nature  —  considerations  which  ought  to  enter  into  every 
combination  of  moral  relations,  and  proportionally  to  influ- 
ence the  duties  thence  resulting. 

Thus  explained,  the  laws  of  nature  are  the  only  true 
foundation  of  all  human  laws.  Judge  Blackstone  asserts 
the  same  thing,  and  that  no  human  laws  should  be  suffered 
to  contradict  these  laws  of  nature  ;  and  then  adds,  by  way 
of  explanation,  or  rather  by  way  of  exception  to  the  first 
general  proposition,  "  There  are,  it  is  true,  a  great  number 
of  indifferent  points,  in  which,  both  the  divine  law  and  the 
natural  leave  man  at  his  own  liberty,  but  "  Avhich  are  found 
necessary  to  be  restrained  within  certain  limits." 

Further  on,  he  observes,  in  effect,  that  in  those  matters 
which  he  calls  indifferent,  human  legislators  have  scope  and 
opportunity  to  interpose,  and  to  make  that  unlawful  which 
was  before  lawful ;  and  in  treating  of  the  obligation  of  posi- 
tive laws,  he  considers  those  which  are  made  concerning 
these  indifferent  matters,  as  he  calls  them,  as  inducing  no 
moral  obligation  to  the  observance.  His  words  are,  "  In 
ii  gard  to  those  laws  that  enjoin  only  positive  duties,  and 
forbid  <»nlv  such  things  which  are  not  mala  in  se,  but  mala 
prohibita  merely,  annexing  a  penalty  for  the  non-compli- 
ance,  here,  1  apprehend,  conscience  is  no  further  concerned, 


APPENDIX.  243 

than  by  directing  a  submission  to  the  penalty,  in  case  of  a 
breach  of  those  laws."  With  all  the  deference  due  to  the 
author  of  the  Commentaries,  as  a  luminous*  and,  with  few 
exceptions  indeed,  a  correct  law  writer,  I  am  persuaded 
that  the  doctrine  here  advanced  is  erroneous,  and  danger- 
ous to  be  admitted  into  society.  On  a  little  examination  it 
will  clearly  appear,  that  every  law,  necessary  for  the  good 
of  the  state,  —  and  such  are  the  laws  of  which  the  author 
was  speaking,  —  is  morally  binding  upon  every  member  of 
the  community.  The  error  seems  to  have  arisen,  at  least 
in  part,  from  an  opinion  adopted  by  many,  and  which, 
though  not  admitted  by  the  author  himself,  seems  to  have 
influenced  his  reasonings,  that  a  state  of  individual  inde- 
pendence is  the  only  true  state  of  nature  to  man  —  that 
every  advance,  every  social  improvement,  is  a  departure 
from  his  nature  —  and  that,  in  an  advanced  state  of  society, 
in  civil  government,  it  often  becomes  necessary,  and  even 
right  and  proper,  to  make  many  laws  for  the  good  of  the 
state,  which,  though  not  contrary  to  the  great  original  law 
of  nature,  have  not  the  sanction  of  that  law ;  and,  though 
politically  binding,  are  not  morally  so,  their  observance  or 
violation  docs  not  affect  the  conscience.  A  little  considera- 
tion will  evince  the  unsoundness  of  this  opinion,  and  all  the 
consequences  supposed  to  be  derived  from  it. 

There  is  by  nature  implanted  in  man  a  capacity  for  im- 
provement. He  is  a  social  being,  formed  by  nature  for 
society.  A  state  of  nature  may  be  a  state  of  weakness  and 
ignorance ;  but  a  state  of  knowledge  and  improvement  is 
not  therefore,  with  man,  opposed  to  a  state  of  nature.  As 
well  might  we   make  the  assertion  of  the    infant  and    the 


244  UTKMMV 

adult.  An  endeavor  alter  knowledge,  and  the  improvement 
of  his  powers,  social  and  individual,  is  indicated  to  man, 
nay,  is  imposed  upon  him  as  a  duty  by  the  very  laws  of 
his  nature.  That  rude  independence,  so  often  imagined, 
is  a  state  forced  and  unnatural.  It  cannot  exist  without  a 
violation  Ol  a  dereliction  of  almost  all  the  laws  constituted 
by  God  in  the  formation  of  man.  The  isolated  individual 
is  deprived  of  almost  all  the  laws  of  his  nature  ;  scarcely 
have  any  of  his  powers,  his  mental  faculties,  passions  or 
appetites,  either  excitement  or  object.  He  may  be  freed 
from  some  of  the  evils  and  vices  found  in  society,  but  he  is 
also  excluded  from  all  its  endearing  charities,  all  its  enjoy- 
ments ;  in  a  word,  he  is  hardly  entitled  to  the  rank  of  man. 
He  is  in  possession  of  himself,  and  entitled  fully  to  his  rank 
in  society  only.  It  is  a  state  to  which  all  his  powers  and 
faculties  arc  adapted,  to  which  the  laws  of  his  nature  bind 
him,  and  which  gives  him  the  full  privilege  of  those  laws. 
Civil  government  is  the  necessary  and  natural  consequence 
of  a  state  of  society,  as  we  shall  have  occasion  to  explain 
more  fully  hereafter,  and  is  legitimately  founded  in  the 
principles  arising  out  of  the  social  nature  of  man,  or,  in 
other  words,  in  the  laws  of  nature.  All  the  members  of  the 
society  have  in  it  a  common  interest.  This  consists  in  the 
means  of  securing  to  all,  and  adjusting  their  social  and  in- 
dividual rights.  To  effect  lliis  endt  laws  to  regulale  the 
conduct  of  the  members,  and  direct  it  to  the  great  object  of 
the  society,  the  common  good,  are  indispensably  nccessnrv. 
A  power  must  therefore  be  somewhere  lodged,  to  make  and 
enforce  the  observance  of  such  laws.  The  mode  of  consti- 
tuting this    power  must   always  he  left    to    the  wisdom    of 


APPENDIX.  245 

man,  and  will  vary  more  or  less,  according  to  the  wisdom, 
integrity,  and  means  employed  to  effect  the  end  ;  but  the 
constitution  of  such  a  power  is  founded  in  the  laws  of  social 
nature.  Surely,  then,  every  law  made  in  the  spirit  of  such 
constitution,  whether  it  relate  to  the  security  of  individuals, 
to  the  security  and  improvement  of  social  intercourse,  inter- 
nal or  external,  or  to  the  support  and  maintenance  of  the 
state,  is  ultimately  derived  from  the  laws  of  nature,  and 
carries  with  it  the  force  of  moral  obligation.  It  is  true, 
that  when  a  certain  end  is  to  be  effected  by  a  law  to  be 
made,  several  objects  may  offer,  and  it  may  be  a  matter  of 
indifference,  or  rather  of  deliberation,  on  which  the  choice 
shall  fall ;  but  Avhen  the  choice  is  made  and  the  law  enacted, 
that  indifference  is  not  transferred  to  the  law  to  weaken 
the  obligation  to  obedience. 

As  to  there  being  matters  indifferent,  which  it  is,  neverthe- 
less, "  necessary  to  sustain  by  law,"  it  appears  to  be  little  if 
anything  short  of  a  plain  contradiction.  It  is  true  that,  in 
certain  stages  of  society,  some  acts  may  not  be  injurious, 
but  may  be  even  beneficial  to  the  community,  and  very 
justly  permitted  to  individuals,  which,  in  a  progressive 
change  of  circumstances,  become  highly  injurious;  so  that 
a  law  to  restrain  these  acts  will  have  become  right  and  fit, 
or,  to  express  it  in  the  manner  of  our  author,  absolutely 
necessary  to  the  good  of  the  whole.  Surely,  if  the  requisi- 
tions of  the  law  be  right  and  fit,  it  is  right  and  fit  that  it 
should  be  obeyed.  The  duty  of  obedience  is  not  a  vague, 
political,  but  a  strict,  moral  obligation. 

The  cases  in  which  the  author  of  the  Commentaries,  as 
well  as  others,  have  advocated  this  laxity  of  principle,  are 
31 


246  APPENDIX. 

generally  of  laws  regulating  commercial  intercourse,  or  for 
raising  a  revenue  to  tin-  state.  The  learned  annotator,  Mr. 
Christian,  whose  opinion  1  am  happy  to  find  coinciding  with 
thai  which  1  had  Ion:/  entertained,  has  illustrated  this  point 
in  a  brief  but  masterly  manner.  I  shall  conclude  this  part 
of  the  subject  with  a  passage  from  his  notes.  After  having 
taken  notice  of  certain  laws  made  to  prevent  the  destruc- 
tive effects  of  (ire  in  London,  and  the  quarantine  laws,  made 
to  guard  against  the  importation  of  infectious  diseases,  he 
proceeds  : 

"  He  who,  by  a  breach  of  these  positive  laws,  introduces 
conflagration  and  pestilence,  is  surely  guilty  of  a  much 
greater  crime  than  he  who  deprives  another  of  his  purse  or 
his  horse."  "  The  laws  against  smuggling  are  entirely  juris 
positivi ;  but  the  criminality  can  only  be  measured  by  the 
consequences ;  and  he  who  seizes  a  sum  of  money  by  evad- 
ing the  public  tax,  does  exactly  the  same  injury  to  society  as 
he  who  steals  so  much  money  from  the  treasury  ;  and  is 
therefore  guilty  of  as  great  immorality,  or  as  great  an  act  of 
dishonesty.  Or  smuggling  has  been  compared  to  that  species 
of  fraud,  which  a  man  would  practise  who  should  join  with 
his  friends  in  ordering  a  dinner  at  a  tavern,  and  after  the 
festivity  and  gratifications  of  the  day,  should  steal  away,  and 
leave  his  companions  to  pay  his  Bhare  of  the,  reckoning. 
Usury  and  simony  are  entirely  of  a  positive  nature,  yet  few 
men  would  have  a  conscience  quite  at  ease  who  had  been 
guilty  of  either." 

Punishments  or  penalties  arc  never  intended  as  an  equiv- 
alent or  a  composition  for  the  commission  of  the  offence  ;  but 
they  are  that  degree  of  pain  or  inconvenience,  which  are  sup- 


APPENDIX.  247 

posed  to  be  sufficient  to  deter  men  from  introducing  that 
greater  degree  of  inconvenience  which  would  result  to  the 
community  from  the  general  permission  of  that  act  which  the 
law  prohibits.  It  is  no  recompense  to  a  man's  country  for  the 
jnsequences  of  an  illegal  act  that  he  should  afterwards  be 
whipped,  or  should  stand  in  the  pillory,  or  lie  in  a  jail.  But 
in  positive  laws,  as  in  morals,  it  is  equally  false  that  omnia 
peccata  paria  sunt.  If  there  are  laws,  such  perhaps  as 
the  game  laws,  which,  in  the  public  opinion,  produce  but 
little  benefit,  or  no  salutary  effect  to  society,  a  conscientious 
man  will  feel  perhaps  no  further  regard  for  the  observance 
of  them,  than  from  the  consideration,  that  his  example 
may  encourage  others  to  violate  those  laws  which  are  more 
highly  beneficial  to  the  community.  Indeed,  the  last  sen- 
tence of  the  learned  Judge  upon  this  subject,  ("  that  where 
disobedience  to  the  law  involves  also  any  degree  of  public 
mischief,  it  is  also  an  offence  against  conscience,")  is  an 
answer  to  his  own  doctrine  ;  for  the  disobedience  of  any  law 
in  existence,  must  be  presumed  to  involve  in  it  either  public 
mischief  or  private  injury.  It  is  related  of  Socrates  that  he 
made  a  promise  with  himself  to  observe  the  laws  of  his 
country  ;  but  this  is  nothing  more  than  every  good  man 
ought  to  promise  and  to  perform  ;  and  he  ought  to  promise 
still  further,  that  he  will  exert  all  his  powers  to  compel 
others  to  obey  them.  As  the  chief  design  of  establishing 
government  is  the  prevention  of  crimes,  and  the  enforce- 
ment of  the  moral  duties  of  man,  obedience  to  that  govern- 
ment becomes  one  of  the  highest  moral  obligations  ;  and 
the  principles  of  moral  and  positive  laws  being  precisely 
the  same,  they  become  so  blended  that  the  discrimination 


248  APPENDIX. 

between  them  is  frequently  difficult  or  impracticable,  or,  as 
the  author  of  tin-  '•  Doctor  and  Student "  has  expressed  it  with 
beautiful  simplicity,  "  lu  every  law  positive,  well  made,  is 
somewhat  of  the  law  of  reason  and  of  the  law  of  God; 
and  to  discern  the  law  of  God  and  the  law  of  reason  from 
the  law  positive,  is  very  hard." 

Having  premised  these  observations  on  the  origin  and 
nature  of  laws  in  general,  pointed  out  the  foundation  of  all 
laws,  and  the  sources  whence  their  obligation  is  derived,  I 
shall  hereafter  take  a  brief  notice  of  the  law  of  nations; 
explain  the  general  nature  of  municipal  laws ;  and  then 
proceed  to  a  systematic  investigation  and  explanation  of  the 
common  law  of  England,  which  is  to  be  the  principal 
subject  of  the  intended  course.  We  shall  dwell,  however, 
more  particularly  on  those  parts  of  the  common  law  "which 
are  in  force  in  this  country,  and  the  rules,  reasons  and  prin- 
ciples, by  which  our  judicial  decisions  are  governed  in  all 
cases  where  the  constitution  or  positive  laws  have  not  been 
interposed  to  supersede  or  alter  them.  Other  parts  will 
meet  with  attention  so  far,  and  so  far  only,  as  shall  be  found 
necessary  and  proper  for  elucidation,  and  to  show  the  con- 
nection of  the  system. 


No.  III. 


NATIONAL   LAW,  AND   MUNICIPAL   LAW  IN   GENERAL. 


LECTURE    II 


LECTURE     SECOND. 


It  was  on  a  former  occasion  observed,  that  in  the  sup- 
posed state  of  nature,  which  is  made  to  consist  in  individual 
independence,  the  laws  of  nature  are  almost  wholly  ex- 
cluded. In  such  a  solitary  state,  the  laws  of  morality, 
which  teach  the  duty  towards  our  fellow-men,  the  social 
duties  which  result  from  such  relations  only,  can  have  no 
place.  Such  a  state  is  merely  imaginary.  A  man  may  tear 
himself  from  society  ;  he  may  place  himself  in  a  total  seclu- 
sion from  all  others ;  but  whenever  and  wherever  he  is 
placed  with  man,  social  relations  arise,  and  social  duties 
result  from  the  laws  of  his  nature,  independent  of  his  volition 
or  choice.  These  duties,  by  forming  connections  and  re- 
lations more  or  less  intimate,  he  may  vary,  contract,  or 
extend  within  certain  limits,  but  he  cannot  abrogate  law,  or 
weaken  its  obligation.  A  state  of  society  may  indeed  be 
supposed,  and  has  actually  existed,  previous  to  regular  po- 
litical institutions,  or  any  adopted  form  of  civil  government. 
In  such  a  state  the  natural  law  of  morals  can  be  the  only 
law  which  is  prescribed,  and  can  be  enforced  only  by  the 
collective  sense  and  natural  authority  of  the  wise  and  good, 


252  APPENDIX. 

and  will  frequently  assume  the  shape  of  compact  and  agree- 
ment, rather  than  of  civil  laws,  the  organs  of  legislative  and 
executive  power  being  wanting. 

Mankind,  dispersed  over  the  earth,  could  not  unite  in  one 
society.  Local  and  other  circumstances  have  occasioned  a 
division  into  separate  stales  and  nations,  independent  of 
each  other,  without  that  intimate,  united  bond  of  common 
interest,  in  which  the  individuality  of  a  slate  or  nation  con- 
si-  ts.  Between  independent  nations  various  circumstances 
of  necessity  or  convenience  induce  international  communi- 
cations, an  intercourse  more  or  less  frequent  and  intimate. 
Among  independent  nations,  from  the  very  nature  of  their 
situation,  no  common  superior  power  to  dictate  and  enforce 
the  law  can  be  admitted.  In  this  respect,  the  great  society 
of  nations,  as  we  may  call  them,  resembles,  in  no  incon- 
siderable degree,  the  state  of  society  just  described,  as 
existing  before  the  actual  organization  of  civil  government. 
The  law  of  nature,  which  in  this  application  of  it  is  called 
the  law  of  nations,  is  therefore  the  only  law;  for  although 
they  may  enter  into  the  most  solemn  treaties  and  conven- 
tions for  regulating  intercourse,  and  adjusting  mutual  con- 
cerns and  interests,  yet  is  each  nation  bound  to  the  observ- 
ance of  treaties  and  conventions,  by  mutual  law  only. 
Bach  must  depend  on  the  faith  of  the  other,  and  in  case 
of  violation  must  submit,  or  resort  to  the  law  of  force. 
Such  is  the  foundation  of  international  law,  which  in  the 
Institutes  of  Justinian  is  thus  defined  :  ■•  Quod  naturalis 
ratio  inter  omnes  homines  constUuit,  id  apud  omnes  gentes 
jurivfjiir  aisloditur ;  vocaturque  jus  gentium,  quasi  quo  jure. 
omnes  gentes  utuntiir" —  "That  law  which  natural  reason 


APPENDIX.  253 

appoints  for  all  mankind,  is  called  the  law  of  nations,  be- 
cause all  nations  make  use  of  it."  We  are  not,  however, 
to  suppose  this  law  always  to  have  been  dictated  by  pure 
reason,  deliberately  deciding  what  is  right  and  fit,  but  by 
reason  influenced,  controlled,  and  directed  by  the  prevailing 
manners,  knowledge,  interests,  and  pursuits  of  the  age.  In 
short,  every  claim  to  its  observance  has  been  made  to  depend 
rather  on  long  established  usage,  than  any  original  dictates 
of  right  reason. 

Accordingly,  we  find  that  international  law  has  always 
partaken  of  the  barbarity  of  the  age,  and  has  been  improved 
and  refined  with  the  improvements  and  refinements  which 
have  taken  place  in  the  knowledge  and  manners  of  nations — 
greatly  retarded,  however,  by  the  force  of  custom.  It  will 
be  sufficient  at  present  to  mention  one  instance  in  the  laws 
of  war.  Among  the  barbarous  nations  of  antiquity,  and 
this  comprehends  every  nation  whose  history  is  extant,  the 
laws  of  war  acknowledged  no  right  but  that  of  the  strongest. 

These  laws  universally  subjected  in  full  right  to  the  con- 
queror, the  life,  liberty,  and  property  of  the  conquered.  To 
grant  to  a  captive  enemy,  or  to  the  people  of  a  conquered 
country,  their  lives,  in  exchange  for  perpetual  servitude  for 
themselves  and  posterity,  or  the  payment  of  a  perpetual 
tribute,  was  considered  as  a  humane  indulgence  —  a  relax- 
ation of  the  strict  right  of  the  conqueror.  Such  continues 
to  be  the  acknowledged  law  of  nations  throughout  Africa, 
and  no  small  portion  of  Asia.  The  same  law  is  admitted, 
and  carried  into  execution  Avith  augmented  severity  by  the 
aboriginal  nations  and  tribes  on  this  continent. 

But  among  the  nations  of  modern  Europe,  and  their  de- 
32 


254  APPENDIX. 

scendants  in  other  parts  of  the  globe,  improvements  in  liberal 
science,  and  refinements  in  manners  and  morals,  under  the 
benign  influence  of  the  Christian  religion,  have  banished 
this  reproach  from  their  code  of  international  law. 

Wiih  these  brief  notices  of  the  law  of  nations,  I  shall  pass 
on  to  the  municipal  law  ;  some  explanation  of  which  is  a 
necessary  preliminary  to  the  study  of  the  common  law. 

Municipal  and  civil  law,  when  used  generally,  are  lerms 
of  the  same  import,  meaning  the  rules  or  laws  by  which  any 
particular  state  or  nation  is  governed,  as  Ihe  municipal  law 
of  England,  of  France,  or  any  other  nation.  When  the  civil 
law  is  mentioned  by  way  of  eminence,  it  is  applied  exclu- 
sively to  the  code  of  Roman  law  —  that  which  was  once  the 
municipal  law  of  ancient  Rome,  or  rather  of  the  Roman 
empire.  Municipal  law  under  the  name  of  jus  ciri/c,  or  civil 
law,  is  thus  defined  by  Justinian.  "  Quod  quisque  popukts 
sibijus  constituit,  id  ipsius prqprium  civitaiis  est,  et  vocatur  jus 
civile  quasi  proprinm  ipsus  civitalis"  That  law  which  a 
people  institutes  for  its  own  government,  is  called  the  civil 
law  of  that,  people,  This  comprehends,  not  only  the  posi- 
tive laws  expressly  enacted  by  the  legislative  power,  but  all 
customs  which  have  obtained  the  force  of  general  laws  in  the 
state. 

Judge  Blackstone  has  given  a  more  particular  and  more 
scientific  definition  of  municipal  law.  He  tells  us  that  it  is 
a  rule  of  civil  conduct  prescribed  by  the  supreme  power  in  a 
state,  commanding  what  is  right,  and  prohibiting  what  is 
wrong.  Let  us  now,  with  the  author  of  the  Commentaries, 
endeavor,  as  concisely  ;>^  possible,  without  Losing  sight  of 
perspicuity,  to  illustrate  the  several  parts  of  the  definition. 


APPENDIX.  255 

First,  then,  municipal  law  is  a  rule.  It  differs  from  a  mere 
order  given  by  a  superior  to  an  inferior,  which  is  confined 
to  the  person  or  the  occasion.  It  differs  from  an  act  grant- 
ing property,  or  a  privilege,  or  exemption  to  an  individual, 
or  enacting  a  penalty  upon  a  particular  person.  For  although 
these  assume  the  name  and  shape  of  laws,  and  though  they 
may  have  permanency,  yet  they  want  that  universality  which 
is  essential  to  a  rule,  in  the  sense  of  municipal  law.  Such 
are  usually  called  private  acts,  and  may,  with  the  strictest 
propriety,  be  called  grants,  compacts,  or  sentences,  accord- 
ing to  the  subject  and  the  parties.  Not  that  it  is  necessary 
that  the  rule  or  law  should  operate  simultaneously  or  imme- 
diately upon  all  the  members  of  the  community.  It  is  suffi- 
cient that  it  have  a  potential  operation  upon  all,  that  its 
scope  and  tendency  is  to  secure  the  rights  of  the  citizens,  to 
secure  an  impartial  administration  of  justice,  or  in  any  legit- 
imate way  to  promote  the  general  interests,  although  in  its 
immediate  requisitions,  it  shall  extend  only  to  a  certain  class 
or  certain  classes  of  men  in  the  state.  Thus  an  act  requir- 
ing all  persons,  accepting  any  public  office,  to  take  an  oath 
for  the  faithful  performance  of  its  duties,  in  its  immediate  re- 
quisitions, extends  only  to  those  persons  who  shall,  from 
time  to  time,  be  appointed  to  such  office  ;  yet  it  is  with  pro- 
priety deemed  a  general  or  universal  law,  not  so  much  be- 
cause appointments  are  supposed  to  be  open  to  all,  so  that 
all  may  become  subject  to  its  immediate  operation,  for  in  all 
governments  there  are  qualifications  for  office,  and  exclu- 
sions, particularly  that  of  one  of  the  sexes  generally,  but  be- 
cause to  secure  a  faithful  performance  of  the  duties  of  public 
functionaries,  the  great  object  of  the  law,  concerns  the  com- 
munity universally. 


256  APPENDIX. 

The  law  is  distinguished  from  advice  or  counsel,  for  that 
it  imposes  an  obligation,  and  compels  even  the  unwilling. 
Whereas  advice  or  counsel  is  received  or  rejected,  at  the  op- 
tion of  those  to  whom  it  is  addressed.  The  distinction 
between  a  law  which  commands,  and  a  compact  or  agree- 
ment which  promises,  it  is  sufficient  barely  to  mention ;  it 
can  need  no  illustration. 

Municipal  law,  as  being  a  rule  of  civil  conduct,  is  distin- 
guished from  the  law  of  nations,  which  is  a  rule  of  moral 
conduct,  and  of  which  we  have  already  treated.  The  natu- 
ral law  of  morals  extends  to  every  duty  of  man,  as  a  social 
being,  and  as  a  being  dependent  on  his  Creator  ;  it  extends 
as  well  to  those  of  imperfect,  as  to  those  of  perfect  obliga- 
tion, as  distinguished  by  ethical  writers.  While  it  enjoins 
the  great  duties  of  justice,  essential  to  the  existence  of  so- 
ciety, it  also  enjoins  the  duties  of  benevolence  and  charity, 
essential  to  its  happiness  —  that  each  should  do  good  to 
others  according  to  their  relative  means,  situation  and  op- 
portunities. 

The  municipal  law  extends  only  to  duties  of  perfect  obli- 
gation. It  regards  men  as  members  of  the  state  only  ;  its 
great  and  principal  object  is  to  enforce  the  duties  of  justice, 
both  public  and  private  ;  to  compel  each  to  render  to  others 
their  just  dues  ;  to  abstain  from  all  those  acts  which  are 
injurious  to  individuals  or  to  the  community  at  large  ;  to 
punish  crimes  which  affect  the  peace  and  safety  of  the  citi- 
zens, or  the  safety  and  welfare  of  the  state,  and  to  compel  a 
reparation  of  all  injuries,  whether  public  or  private.  Thus, 
although  municipal  law  is  founded  in  the  law  of  nature,  the 
great  law  of  morals,  and  coincides  with  it  to  a  certain  ex- 


APPENDIX.  257 

tent,  yet  is  it  more  limited  in  its  end,  regarding  the  happi- 
ness of  men  merely,  and  alone  as  connected  with  the  civil 
state. 

Municipal  law  is  also  a  rule  prescribed.  This  implies 
that  the  law  be  prospective,  not  retrospective  in  its  opera- 
tions, and  that  it  is  to  be  made  known  before  it  can  justly  be 
entitled  to  the  attribute  of  a  rule  of  civil  conduct.  For,  to 
require  that  past  conduct  should  be  judged  by  its  conformity 
or  non-conformity  to  a  law  subsequently  enacted,  or  that 
future  conduct  should  be  affected  or  judged  of  by  a  law 
enacted  in  secretj  and  of  which  no  means  of  knowledge  is 
furnished  to  the  party  to  be  affected  thereby,  is  the  supreme 
of  tyranny,  contrary  to  every  solid  principle  of  natural  law, 
reason  and  justice. 

And  lastly,  in  what  we  may  call  the  first  branch  of  the  defi- 
nition, it  is  said  that  municipal  law  is  not  only  a  rule  of  civil 
conduct  prescribed,  but  is  a  rule  prescribed  by  the  supreme 
power  in  the  state.  That  the  power  to  make  laws  which 
shall  bind  the  community  through  all  its  members  in  the 
duty  of  obedience,  must  be  paramount  or  supreme  in  the 
state,  is  too  obvious  to  need  illustration.  For  how  can  that 
be  deemed  a  law,  or  rule  of  civil  conduct,  winch  may  at 
any  time  be  suspended,  or  its  obligation  dissolved,  by  any 
citizen  at  his  option.  In  such  case  it  assumes  not  the  char- 
acter of  a  law  but  of  counsel  or  exhortation,  which  those  to 
whom  it  is  addressed  may  accept  or  reject  at  pleasure.  It 
is  true  that  by  the  constitution  of  a  state,  a  temporary  power 
to  suspend  the  operation  of  a  law  may  be  vested  in  an 
organ,  distinct  from  that  of  ordinary  legislation  ;  but  this  is 
only  a  participation  of  the  supreme  power,   to  the  sove- 


258  APPENDIX. 

peignty  of  which  appertains  the  power  of  suspending  and 
repealing,  as  well  as  of  enacting  laws. 

In  this  power  oi'  legislation,  the  power  of  suspending  or 
repealing  laws,  consists  the  sovereignty  of  a  state,  whether 
this  power  be  vested  in  a  mere  simple  or  more  complex 
organ  ;  whether  it  be  in  the  whole  body  of  the  citizens,  as  in 
a  pure  democracy,  in  a  select  body  as  in  an  aristocracy,  in  a 
single  person,  as  in  absolute  monarchies,  or  in  a  union  of  all 
these  forms,  as  in  the  parliament  of  (  hreal  Britain,  consisting 
of  the  king,  the  monarch,  the  house  of  lords,  the  aristocracy 
of  the  country,  and  a  house  of  commons,  the  representa- 
tives of  the  people,  or  democratic  part  of  the  nation. 

It  may  not  be  foreign  to  this  branch  of  our  subject  to 
make  some  farther  inquiry  into  the  origin  and  nature  of  civil 
government  —  the  foundation  of  this  sovereign  power  —  and 
the  right  with  which  it  is  vested  of  enacting  and  enforcing 
laws. 

I  cannot  readily  assent  to  the  proposition,  however  sup- 
ported by  great  authorities  —  that  the  only  true  and  natural 
foundation  of  civil  society  is  the  wrants  and  fears  of  indi- 
viduals—  I  think,  as  has  been  already  briefly  remarked,  the 
foundation  is  more  deeply  laid  in  the  laws  of  social  nature  ; 
in  the  adaptation  of  man  to  the  social  and  civil  state  by  thai 
nature,  which  is  the  constitution  ordained  by  creative  wis- 
dom and  goodness.  His  wants  and  his  fears  as  an  individ- 
ual, arising  from  his  weakness,  which  is  inseparable  from  his 
nature  in  his  state  of  existence,  can  be  considered  only  as  an 
inducement,  a  powerful  inducement  if  you  please*  to  avail 
himself  of  the  laws  of  his  nature,  and  by  building  on  that 
foundation,  to  seek  security  againsl  his  fears,  and  relief  to 
his  wants,  in  local  and  civil  institutions. 


APPENDIX.  259 

It  has,  I  think,  been  already  evinced  that  man  is  not  only 
adapted  by  original  constitution,  but  is,  if  I  may  use  the  ex- 
pression, bound  by  the  laws  of  his  nature  to  the  social  state. 
A  few  observations  may  suffice  to  show  his  adaptation  to  the 
civil  state. 

If  we  inquire  what  it  is  which  ultimately  renders  man  a 
fit  subject  of  moral  government,  we  shall  find  it  in  his  con- 
sciousness of  moral  obligation  ;  or  what  we  may,  with  a 
good  degree  of  propriety,  call  his  sense  of  accountability. 
The  sense  of  accountability  is  the  result  of  moral  perception. 
When  a  man  perceives  in  the  result  of  certain  existing 
moral  relations,  a  duty  enjoined,  he  is,  in  the  performance  of 
the  duty,  conscious  of  a  sentiment  of  self-approbation  accom- 
panied with  pleasure  ;  in  the  neglect  or  violation,  a  sentiment 
of  disapprobation,  accompanied  with  pain  to  the  mind,  with 
displeasure.  In  viewing  the  moral  actions  of  others,  he  finds 
arising  in  his  mind  towards  the  agents,  similar  sentiments  of 
approbation  or  disapprobation,  as  the  action  may  have  been 
considered  as  morally  right,  or  morally  wrong.  He  finds 
this  common  to  man,  and  conceives  it  to  be  a  common  prin- 
ciple in  the  law  of  moral  beings.  He  perceives  that  the 
approbation  or  disapprobation  of  his  own  actions  by  others, 
as  they  have  been  a  performance  or  violation  of  his  moral 
duties,  or  in  other  words,  as  they  have  been  right  or  wrong, 
to  be  just  and  due. 

It  ought  to  be  added,  that  it  is  a  principle  implanted  in 
the  breast  of  every  human  being,  that  he  should  desire  the 
approbation  of  others,  and  that  he  should  derive  a  rational 
pleasure  from  the  merited  gratification  of  this  desire.  He 
has  a  consequent  dread  of  their  disapprobation,  and  sutlers 
pain,  is  rendered  unhappy  by  merited  censure. 


260  APPENDIX. 

When  man  raises  his  views  to  the  Supreme  Being,  his 
Creator,  on  whom  he  is  dependent,  he  conceives  an  appro- 
bation, or.  perhaps,  to  speak  with  more  propriety,  a  com- 
placency in  the  Divine  mind,  in  the  observance  of  the  just 
laws  which  he  has  established,  and  a  disapprobation  in  then- 
violation  by  the  creature.  This  view  of  the  subject,  with 
the  conception  of  the  Divine  displeasure  at  the  offence, 
brings  home  to  the  mind  not  only  a  sense  of  punishment 
experienced  in  the  apprehension  of  the  displeasure,  but  the 
full  right  and  justice  of  punishment.  By  this  branch  of 
accountability  to  his  Maker,  and  moral  lawgiver,  is  man 
finally  fitted,  and  his  subjection  to  moral  government  com- 
pleted. 

From  that  sense  common  to  mankind,  that  perception 
which  every  man  has,  that  agreeably  to  the  laws  of  his  social 
nature,  his  actions,  according  to  their  merit  or  demerit,  are 
of  right  subjected  to  the  approbation  or  censure  of  his  fellow- 
men,  arises  a  second  branch  of  accountability.  The  mutual 
accountability  of  each  to  all  —  different  from  the  other  in 
degree,  extent  and  immediate  object,  but  equally  founded 
in  the  laws  of  nature,  as  ordained  by  the  great  first  cause. 
Having  taken  this  view  of  man  and  the  laws  of  his  nature, 
if  it  be  sufficiently  correct,  it  is  obvious  to  conclude,  that  as 
his  sense  of  accountability  to  his  Creator  renders  man  a  fit 
subject  of  moral  government,  on  the  same  principle  his 
sense  of  accountability  to  his  fellow-men  renders  him  a  fit 
subject  of  human,  that  is,  civil  government.  If  we  have 
been  at  all  successful  in  our  inquiries,  it  is  very  evident  that 
the  foundation  of  civil  government  is  laid  on  the  broad  basis 
of  the  laws  of  nature  ;    it  is  founded  in   those  principles 


APPENDIX.  261 

which  arise  out  of  the  nature  of  man,  as  a  social  and  moral 
being.  That  man  is  under  a  necessity  to  adopt  civil  govern- 
ment is  readily  admitted  ;  not  a  necessity  arising  from  fears 
and  wants  of  individuals,  or  even  from  the  perversity  of  hu- 
man nature,  but  a  necessity  arising  from  his  nature  as  a 
limited  as  well  as  social  being.  Let  me  endeavor  to  show 
in  what  this  necessity  consists  ;  and  in  doing  this  I  shall  not 
hesitate  to  repeat  some  of  my  former  thoughts,  when  lucu- 
brating upon  the  same  subject. 

Men  have  a  relish  for  society.  It  is  the  scene  of  their  im- 
provements, and  the  great  source  of  their  happiness  ;  still 
no  degree  of  individual  strength,  no  possible  goodness  of 
heart,  can  enable  them  to  enjoy  its  benefits  without  a  pro- 
vision of  civil  institutions  and  law. 

Perception,  consciousness,  and  volition,  or  those  powers 
which  originate  external  actions  in  men,  belong  to  them 
individually.  A  society  consisting  of  any  number  of  indi- 
viduals, can  have  no  common  united  perception,  conscious- 
ness, or  volition.  Could  this  be  the  case  a  society  might 
well,  and  with  the  simple  act  of  volition,  direct  and  control 
the  actions  of  all  and  of  every  one  of  its  members  with  the 
same  ease  and  regularity  with  which  an  individual  directs 
and  controls  the  motion  of  his  own  body  and  its  members  ; 
but  this  is  denied  to  man  in  the  aggregate,  and  in  every 
combination  of  society.  The  will  of  the  society  is  made  up 
of  the  individual  wills  of  its  members. 

Had  man  been  formed  with  faculties  which  misjht  have 

enabled  him,  with  an  intuitive  glance  to  penetrate  and  com- 

I  >  ill  lend  as  they  arise  the  individual  wills  of  all  the  members 

of  the  society,  and  of  all  whose  conduct  might  any  way 

33 


262 


APPENDIX. 


affect  it ;  to  penetrate  and  comprehend  the  passions,  appe- 
tites and  pursuits  of  every  individual ;  in  a  -word,  to  discern 
and  comprehend  all  the  causes  by  which  God  governs  the 
ad  ions  of  moral  agents  ;  —  were  he  endued  with  reason  suffi- 
cient to  arrange  the  whole,  so  as  to  prevent  any  individual 
interference  —  goodness  of  heart  and  purity  of  mind  to  ena- 
ble him  to  pursue  the  arrangement  in  such  a  state,  both  of 
knowledge  and  disposition,  —  he  would  stand  in  no  need  of 
civil  laws,  or  rules  prescribed  by  common  consent,  for  the 
regulation  of  social  conduct.  But  such  a  state  falls  not  to 
the  lot  of  any  finite  being. 

Our  positive  knowledge  is  only  partial  of  the  present 
and  past,  depending  on  actual  and  successive  observation. 
There  is,  however,  given  us  some  clue  to  the  future.  We 
are  able  to  perceive  certain  relations  ;  and  as  far  as  expe- 
rience leads,  we  find  a  uniformity  in  the  course  of  nature. 
We  discover  some  of  the  causes  and  some  of  the  laws  by 
which  physical  effects  are  produced  in  a  regular  series  ;  of 
others  we  are  wholly  ignorant,  or  have  at  best  but  an  im- 
perfect glimpse.  Much  more  limited  is  our  knowledge  of 
the  causes  which  produce  and  vary  human  actions,  subject 
to  the  influence  of  motives,  to  the  choice  of  the  agent,  and 
to  those  laws  by  which  they  are  governed  in  succession. 
In  an  extensive  society,  individuals  can  have  but  a  limited 
knowledge  even  of  the  present  actions  of  the  whole.  Their 
knowledge  of  the  intentions  and  causes  on  which  future  ac- 
tions depend,  is  much  more  limited.  We  arc  able  to  gain 
some  knowledge  of  the  leading  principles  of  actions,  of  the 
motives  which  generally  prevail,  and  the  species  of  action 
they  will  produce  in  certain  situations.     But  to  descend  to 


APPENDIX.  263 

every  situation,  to  every  character,  and  thence  to  learn  fully 
the  particular  influence  of  motives  and  the  individual  ac- 
tions, which  will  follow  in  each,  is  beyond  the  reach  of  hu- 
man sagacity.  In  a  society  composed  of  any  considerable 
number  of  individuals,  and  in  a  state  of  any  considerable 
activity,  there  will  be  many  and  very  different  situations. 
The  influence  of  motives  upon  individuals  will  be  very 
different.  They  will  have  a  variety  of  distinct  interests  and 
pursuits  ;  and  those  not  at  all,  or  very  imperfectly  known  to 
each  other  in  their  origin.  However  innocent  and  right 
those  interests  and  pursuits  may  be,  when  considered  sepa- 
rately, they  will,  by  frequent,  though  unintentional  inter- 
ferences and  oppositions,  form  a  scene  too  intricate  for  the 
powers  of  the  human  mind  to  evolve.  Could  we  suppose 
every  person  in  the  society  actuated  by  principles  of  the 
most  disinterested  benevolence,  and  by  the  most  accommo- 
dating spirit,  the  whole  time  must  be  consumed  in  attempts 
to  compromise  —  none  could  be  left  for  action. 

Without  a  social  perception,  consciousness  and  volition, 
with  any  goodness,  and  with  any  wisdom  short  of  infinite, 
the  state  of  society  would,  at  best,  be  a  scene  of  inextricable 
confusion.  To  remedy  such  evil,  nature  has  pointed  out  to 
man  the  necessity  of  civil  establishments,  and  the  promulga- 
tion of  laws.  Here  man  finds  a  provision  analogous  to  his 
nature.  By  the  establishment  of  laws,  which  the  individu- 
als of  the  community  have  submitted  to  observe  as  the  rule 
of  their  future  conduct,  they  are  enabled,  with  a  sufficient 
degree  of  certainty,  to  foresee  the  future  pursuits  and  inter- 
ests of  each  ;  following  the  line  prescribed,  they  can  avoid 
any    considerable    interference,   or,   by  applying  the  rule, 


264  APPENDIX. 

remedy  the  inconvenience.  In  no  olher  way  is  it  possible  to 
connect  a  community  either  in  sentiment  or  interests,  to 
unite  the  public  force,  to  direct  it  to  the  attainment  of  any 
common  good,  or  to  the  avoiding  or  repelling  any  common 
evil ;  in  no  other  way  is  it  possible  to  give  any  security  to 
public  or  private  rights. 

Still  men  are  imperfect ;  they  will  be  guilty  of  deviations, 
transgressions  of  the  law,  and  infringements  of  each  other's 
rights.  This  will  happen  sometimes  through  ignorance  of 
the  law,  or  of  the  right ;  an  ignorance  which  arises  from 
weakness  in  judging,  or  inattention  in  examining.  Some- 
times it  will  happen  through  the  prevalence  of  interest,  or 
the  violence  of  passion ;  therefore,  to  give  laws  a  compul- 
sory force,  and  to  secure  a  general  observance,  they  must  be 
so  calculated  that  every  member  shall  find  a  convenience  in 
the  observance,  but  more  especially  a  certain  inconvenience 
in  the  neglect  or  violation.  Hence  arises  the  necessity  of 
penalties.  These  penalties  are,  from  the  weakness  of  men 
in  discerning  tendencies,  and  their  consequent  liability  to 
vice,  necessarily  enhanced.  Hence,  also,  arises  the  neces- 
sity of  subordination,  and  of  civil  rulers  to  give  activity  and 
efficiency  to  the  laws.  In  a  state  of  greater  perfection  than 
is  to  be  found  in  the  present  state  of  society,  a  greater  per- 
fection in  knowledge  and  virtue,  penalties  may  make  a  less 
formidable  appearance ;  but  in  every  state  the  necessity  of 
penalties  will  equally  exist. 

In  a  society  composed  of  a  few  individuals,  in  a  simple 
state  of  manners  and  of  property,  the  motives  to  action  are 
few ;  consequently  there  is  little  activity  of  individuals,  and 
little  interference  of  interests.     A  few  simple  rules,  mostly 


APPENDIX.  265 

adopted  and  supported  by  custom,  and  frequent  consulta- 
tions upon  present  emergencies,  supply  the  place  of  a  more 
regular  polity.  They  are  the  first  rude  essays  in  civil  insti- 
tutions. Still,  in  every  state  of  morals  and  manners,  a  ne- 
cessity of  known  and  established  rules  or  laws,  equally  exists. 
On  the  whole,  Ave  may  safely  conclude,  that  no  order  of 
beings  short  of  infinite  perfection,  in  wisdom  as  well  as  in 
goodness,  can  subsist  in  society  without  an  establishment  of 
civil  government  and  law. 


No.  IV. 


THE  SYSTEM  OF  LAW,  AND  THE  PROPER  METHOD 
OF  STUDY. 


LECTURE  III. 


LECTURE     THIRD. 


My  principal  view,  in  this  lecture,  will  be  merely  to  make 
some  strictures  on  the  common  law  of  England,  its  rise, 
progress,  and  formation  into  a  science,  and  to  add  some 
observations  on  its  study. 

Man  is  everywhere  the  creature  of  habit.  By  repeated 
exercise  of  his  corporeal  powers  and  organs  in  any  particu- 
lar way,  he  not  only  acquires  a  facility  and  dexterity  in  the 
performance,  but  a  fondness  for  the  exercise  ;  it  becomes  a 
habit.  It  is  the  same  with  the  mental  powers,  whether  taken 
individually  or  socially ;  to  whatever  course  of  action  man 
may  have  repeatedly  applied  himself,  a  habit  is  superinduced. 
Such  is  the  common  nature  of  all  persons.  Social  action  is 
originated  and  directed  by  mental  exercise.  By  repetition 
in  such  case,  a  mental  habit  is  acquired.  It  is  a  habit,  of 
the  moral  and  social  kind,  intimately  connected  with  a  notion 
of  right  and  justice.  Where  the  operation  is  on  the  minds 
of  all,  or  the  major  part  of  the  society,  the  habit  becomes 
general,  and  thus  a  custom  is  introduced,  by  which  is  deter- 
mined what  is  right  and  fit,  what  ought  to  be  done  in  every 
case  falling  within  the  custom.  In  a  word,  it  obtains  a 
34 


270  APPENDIX. 

binding  force,  and  becomes  the  law  of  the  society.  Such 
appears  to  be  the  origin  of  national  customs,  or  common 
law.  Connecting  with  the  moral  feelings,  these  customs 
acquire  to  a  degree  the  force  of  moral  obligation,  and  are 
enforced  by  the  same  sanctions  ;  the  observation  is  felt  to 
be  right,  the  non-observance  or  violation,  wrong.  The 
observance,  therefore,  meets  the  general  approbation,  the 
violation,  the  general  censure.  Combining  with  the  general 
interest,  it  is  perceived  to  be  the  right  of  the  community 
to  require  a  general  observance.  In  the  progress  of  society 
new  pursuits  and  new  interests  arise,  and  the  state  becomes 
more  complex  ;  the  early  customs,  few  and  simple,  become 
insufficient.  The  society,  therefore,  by  themselves,  or  by 
some  authority  delegated  or  assumed,  agree  upon  new  rules, 
to  be  applied  to  those  cases  in  which  the  customs  already 
established  are  found  to  be  deficient,  and  thus  positive  laws 
or  statutes  are  introduced.  These  new  laws  being  fre*- 
qucntly  altered,  modified,  repealed  and  revised,  never 
obtain,  as  such,  that  habitually  binding  force  which  attaches 
to  the  ancient  customs.  Some  of  these  positive  laws,  made 
in  the  early  stages  of  society,  may,  however,  be  lost,  while 
the  rules  which  they  have  introduced  in  practice,  continue 
to  be  acted  upon.  Such  rules  will  now  be  considered  as 
customs,  and  binding  as  such  ;  and  such,  in  its  origin,  was 
the  Common  Law  of  England.  It  has  indeed,  in  its 
progress,  received  great  additions  from  various  sources, 
until  it  has  grown  up  into  that  vast  fabric,  that  comprehen- 
sive system  which  we  now  find  it.  Most,  writers  on  the 
subject  have  held,  that  the  customs  of  which  the  common 
law  <»l    England   is  composed,  originated   with  the  Saxons 


APPENDIX.  271 

who  conquered  that  island  ;  and  this  from  a  belief  that  the 
ancient  inhabitants,  in  that  event,  were  wholly  exterminated 
within  the  limits  of  the  conquest.  But  it  seems  probable 
that  the  great  multitude,  of  villeins  or  people  reduced  to 
slavery  among  them,  —  and  such  were  with  them  almost  all 
the  cultivators  of  the  earth,  — were  a  remnant  of  the  con- 
quered Britons,  the  ancient  inhabitants.  It  is  reasonable  to 
suppose  that  these  were  of  the  lower  class  of  the  Britons  ; 
those  of  the  higher  class,  and  the  most  warlike,  having  per- 
ished in  the  war,  or  fled  into  the  almost  inaccessible  moun- 
tains of  Wales.  From  those  who  remained,  it  is  highly 
probable  that  the  Saxons  received  and  adopted  with  their 
own  some  of  the  British  laws  and  customs.  Some  of  these 
were,  we  may  suppose,  of  Roman  origin,  as  Britain  had  for 
centuries  been  a  Roman  province,  and  all  the  laws  had 
been  administered  by  Roman  governors  and  judges.  But 
from  the  degraded  state  of  the  Britons  who  remained  after 
the  Saxon  conquest,  their  laws  and  customs  might  not  have 
obtained  to  a  very  considerable  extent.  I  think,  however, 
this  will  account  for  the  similarity  found  in  some  of  the  ear- 
best  Saxon  laws  t5  the  Roman  or  Civil  law.  The  body  of 
the  customs,  however,  were  of  Saxon  origin.  Upon  the 
Saxon  conquest,  England  had  been  divided  into  seven  inde- 
pendent kingdoms,  called  the  Heptarchy,  in  which  customs 
somewhat  different  obtained.  The  Danes,  who  conquered 
and  made  permanent  settlements  in  some  parts  of  England, 
and  even  at  one  time  obtained  the  sovereignty  of  the  whole, 
introduced  some  of  their  customs.  Aftei  the  union  of  the 
Heptarchy  under  one  sovereign,  Alfred  the  Great,  a  prince 
the  most  learned  of  that  age,  collected  all  the  customs  and 


272  APPENDIX. 

laws  of  general  application,  into  one  code,  and  ordered 
that  it  should  be  observed  throughout  the  kingdom.  Alfred 
also  made  a  civil  division  of  the  kingdom  into  counties, 
hundreds,  and  tithings,  and  established  county  and  some 
other  courts.  These  divisions  and  courts,  though  with  some 
alterations,  still  continue.  A  revision  of  Alfred's  code  was 
commenced  by  Edgar,  and  afterwards  completed  by  his 
grandson,  Edward  the  Confessor,  and  probably  with  some 
additions. 

A  very  great  alteration  was  made  in  the  common  law  by 
the  introduction  of  the  feudal  system  into  England,  by 
William  the  Conqueror.  This  system  was  for  some  time 
refined  upon,  and  carried  to  a  great  extent  by  the  courts  now 
filled  with  Norman  judges,  and  who  were  frequently  guided 
by  the  laws  and  customs  of  their  own  country.  The  books 
of  the  civil  law,  which  had  long  been  supposed  to  be  lost, 
having  been  discovered,  were  studied  with  indefatigable  zeal 
by  the  clergy,  who  almost  monopolized  what  little  there  was 
of  learning  in  that  age ;  the  advocates  in  England  were 
mostly  of  this  class,  as  were  also  many  of  the  judges.  And 
although  the  civil  or  Roman  law  was  never  publicly  allowed 
to  have  any  force  in  England,  and  was  not  cited  as  au- 
thority, yet  the  decisions  of  the  courts  were  in  many  in- 
stances  influenced  by  its  rules.  Accordingly,  we  find  thai 
Grlanville,  chief  justiciary  of  England,  and  a  noted  law 
writer  in  the  reign  of  Edward  I.,  as  well  as  some  other 
writers  who  followed  him,  have,  although  without  reference, 
copied  into  their  works  many  pi  of  the  civil  law,  which 

were  taken  ;i>  part  of  the  common  law  of  England.  Indeed, 
as  commerce  and  personal  property  increased,  and  personal 


APPENDIX.  273 

contracts,  which  in  those  times  had  in  consideration  of  law, 
occupied  the  back-ground,  became  important,  the  books  of 
the  civil  law  furnished  the  best,  nay,  the  only  practical  rules 
to  which  resort  could  be  had.  In  such  cases  we  shall  even 
find  that  down  to  later  times  —  from  the  same  source,  but 
without  acknowledging  the  authority  of  the  civil  law,  were 
drawn  many  rules  and  maxims  for  governing  decisions  in 
cases  of  personal  contracts,  deposits  and  trusts.  Very  few 
statutes  of  the  first  Norman  kings  are  now  to  be  found.  It 
is  very  certain,  however,  that  the  statutes  passed  in  those 
early  times,  introduced  a  course  of  decisions,  which  after  the 
statutes  were  lost  and  forgotten,  came  to  be  considered  as  a 
part  of  the  common  law.  We  further  find  all  the  early 
statutes  were  very  short,  and  indeed  mere  capitularies,  es- 
tablishing some  material  point,  and  leaving  all  the  rest  to 
the  interpretation  of  the  judge.  These  interpretations  and 
the  rules  and  maxims  adopted  by  the  court,  to  elicit  the 
meaning  and  to  give  effect  to  these  summary  acts,  may  be 
considered  as  a  great  addition  to  the  common  law.  To  in- 
stance —  in  the  statute  of  Westminster  2d,  commonly  called 
the  statute  De-don  is.  This  statute  enacts,  that  henceforth  in 
all  donations,  the  Avill  of  the  donor  shall  be  observed.  From 
this  short  sentence,  by  construction,  has  been  deduced  all 
the  various  species  of  estates  tail,  and  all  the  doctrines  con- 
cerning them  which  occupy  so  large  a  space  in  the  English 
law  of  real  property.  Great  additions  to  the  common  law 
have  continued  to  be  made  down  to  the  present  time.  The 
law  merchant,  a  very  important  branch  of  the  law,  has  been 
very  greatly  extended  and  improved,  ll  has  been,  and  by 
some  still  is,  considered  to  be  a  particular  custom,  but  ll 


274  APPENDIX. 

certainly  now  is.  whatever  it  might  have  once  been  consid- 
ered, a  legitimate  branch  of  the  common  law.  It  compre- 
henda  a  very  extensive  and  importanl  branch  of  contracts. 
Nor  is  it  at  all  material  whether  any  of  the  parties  to  such 
contracts,  be  merchants  or  not.  If  neither  of  the  parties  be 
B  merchant,  it  is,  by  all,  allowed  to  be  sufficient  to  say,  it  is 
a  mercantile  transaction,  and  therefore  to  be  decided  on  the 
principles  of  the  law  merchant,  whatever  may  be  the  char- 
acter of  the  parties.  But  for  a  custom  to  extend  to  all 
through  the  kingdom,  without  limitation  of  person  or  place, 
answers  the  fullest  definition  of  the  common  law.  The 
common  law,  in  connexion  with  the  statute  law,  forms  a 
system,  the  knowledge  of  which  is  called  the  science  of  law. 
To  those  who  are  engaged  in  this  study,  it  may  be  useful 
to  inquire,  how  this  system  has  been  formed.  It  may  serve 
to  facilitate  their  progress.  It  has  not  been  formed  into  the 
system,  into  which  it  is  grown,  from  any  previous  or  cotem- 
porary  design  directly  intending  to  produce  such  system. 
Those  who,  in  the  progress,  have  furnished  the  most  valuable 
materials,  and  have  contributed  most  to  its  perfection,  appear 
to  have  had  no  such  particular  aim  ;  and  even,  for  the  most 
part,  not  to  have  thought  it  capable  of  being  reduced  to  a 
system.  It  has  been  prepared  and  adopted  through  the  in- 
fluence of  that  tendency  to  analogy  which  is  so  natural  to 
the  mind  of  man,  by  means  of  which  everything  in  his  pur- 
suits turns  towards,  and  finally  takes  a  systematic  form. 
From  this,  every  child  in  learning  to  speak,  not  from  being 
taught,  but  from  a  natural  propensity,  pursues  and  is  guided 
by  analogy.  When  he  lias  once  learned  to  express  his 
meaning  of  things,  in  the  little  circle  of  his  knowledge,  he 


APPENDfX.  275 

will,  in  the  use  of  words  that  are  anomalous,  constantly,  until 
otherwise  taught,  form  them  according  to  the  analogy  of  the 
language,  although  he  shall  never  have  heard  of  analogy,  nor 
be  even  capable  of  understanding  its  meaning.  From  this 
general  propensity  to  analogy  in  everything,  in  a  course  of 
action,  whether  pursued  by  one  man  only,  or  by  several  in 
connection  or  succession,  there  is  a  constant  tendency  to 
system,  whether  directly  intended  or  not.  In  this  way  have 
been  prepared  almost  all  the  great  systems  to  be  found  in 
the  arts  and  sciences,  within  the  whole  compass  of  human 
knowledge.  The  materials  had  been  prepared,  the  several 
parts  had  been  formed,  and  had  received  their  adaptation 
long  before  the  systematic  proportions  were  suspected.  In 
such  a  state,  what  is  called  forming  a  system,  is  nothing 
more  than  a  discovery  of  its  existence,  and  an  orderly  and 
well-arranged  description  and  delineation  of  its  several  parts 
and  relative  proportions.  "We  now  apply  the  name  of  sys- 
tem to  the  systematic  description  —  to  an  orderly  and  scien- 
tific disposition  of  the  names  of  the  several  parts.  We  also, 
by  an  allowable  figure,  give  the  name  of  system  to  a  treatise 
on  such  a  subject.  Far  be  it  from  me  to  depreciate  the  meril 
of  such  discovery  and  arrangement,  often,  very  often,  of 
incalculable  benefit  to  the  scientific  world.  It  frequently 
requires  a  perspicuity,  a  force  and  comprehension  of  intel- 
lect, which  falls  to  the  happy  lot  of  a  few  of  the  human 
race. 

It  has  fared  with  the  laws  of  England  as  with  other  sys- 
tems which  have  grown  up  in  a  long  course  of  gradual  im- 
provement. For  centuries,  if  was  hardly,  if  at  all,  thought 
capable  of  being  treated  systematically.     The  best  method, 


11  ()  APPENDIX. 

it  was  thought,  was  to  treal  "I  the  several  parts  or  heads, 
according  to  an  alphabetic  arrangement  of  their  several 
titles.  This  arrangement,  be  sure,  has  the  convenience  of 
a  dictionary  ;  but,  for  any  scientific  purpose,  the  disposition 
might  have  as  well  beeu  made  fortuitously. 

Such  was  the  arrangement  adopted  by  Viner,  by  Bacon, 
Comyns,  and  many  others.  Some  heads  of  the  law  had 
been  treated  under  a  more  scientific  form,  but  with  very 
little  illustration  from  deduction,  or  connected  reasoning. 
Such  treatises  consisted  mostly  in  a  collection  of  rules, 
maxims,  and  decided  eases,  considered  as  applicable  under 
the  several  heads.  The  lawyer  and  the  student  were  left 
to  make  their  own  deductions  and  conclusions,  and  to  apply 
them  each  by  the  force  of  his  own  reasoning.  In  this  situa- 
tion the  study  of  the  law  was  laborious  indeed.  The 
"  Viginti  annorum  lucubraticmes"  was  sufficiently  short  for 
attaining  any  competent  degree  of  knowledge.  That  emi- 
nent lawyer  and  judge,  Sir  Matthew  Hale,  avIio  flourished 
in  the  reign  of  Charles  II.,  was  the  first,  so  far  as  I  have 
been  able  to  learn,  who  conceived  the  opinion  that  the  law 
of  England  wTas  capable  of  being  reduced  to  a  system,  and 
of  being  treated  scientifically.  With  this  view,  in  his  his- 
tory of  the  common  law,  an  unfinished  work,  not  published 
until  after  his  death,  he  had  exhibited  a  complete  scientific 
analysis  of  the  law.  This  conception  Judge  Blackstone 
afterwards  realized  in  his  Commentaries.  He  has  taken 
from  the  great  divisions  of  that  analysis  the  iitlc<  of  bis  four 
Looks,  and  from  the  subordinate  divisions,  the  titles  of  the 
subordinate  divisions  contained  in  Ins  greal  work.  Since  the 
publication  of  the  Commentaries,  there  have  appeared   a 


APPENDIX.  277 

great  number  of  treatises  upon  distinct  heads  of  the  law, 
many  of  them  handled  in  the  same  masterly  and  scientific 
manner.    Such  are  Chitty  on  Pleadings  and  on  Bills  ;  Jones 
on  Bailments ;    Powell  on  Contracts,   on  Devises  and  on 
Mortgages  ;  and  many  more  too  numerous  to  mention.     All 
these  have,  in  a  very  high  degree,  facilitated  the  progress  of 
the  student,  and  aided  the  researches  of  the  lawyer.    It  may 
not  be  amiss  again  to  refer  to  the  propensity  to  analogy, 
already  mentioned  —  to  attend  briefly  to  its  necessity  and 
use  in  the  acquisition  of  all  general  knowledge  ;  and  the 
necessity  of  a  particular  attention  to  it  in  the  study  of  the 
law.     United  with  the  power  of  abstraction  and  association, 
it  lays  the  foundation  of  all  general  knowledge  and  science, 
and  without  which  we  could  never  attain  anything  beyond 
the  mere  knowledge  of  individuals,  without  the  possibility 
of  drawing  one  general  conclusion.     Our  first  acquaintance 
is  with  individuals  ;  among  a  number  of  individuals,  as  where 
man  is  the  subject,  is  observed  a  great  degree  of  similarity 
in  their   make,  powers,  faculties  and  dispositions.      They 
differ  indeed  as  individuals,  but  abstracting  from  that  differ- 
ence by  which  individuals  are  distinguished,  it  is  perceived 
that  what  is  predicable  of  any  one,  is  predicable  of  each  and 
of  all.     From  a  view  of  the  intimate  analogy  and  associa- 
tion of  all  in  which  the  individuals  agree,  the  mind  is  im- 
pressed with  the  notion  of  a  common  nature  —  an  abstract 
whole ;   or,  if  I  may  use  the  expression,  an  abstract  indi- 
viduality, in  the  united  conception  of  the  individuals,  and 
is  able  to  draw  general  conclusions,  and  lay  down  general 
principles,  without  bringing  any   particular    individuals,  or 
succession  of  individuals  into  view.     Other  individuals  arc 
35 


278  APPENDIX. 

observed  differing  from  the  first  in  many  essential  qualities, 
but  having  a  great  degree  of  similarity,  an  equal  analogy 
among  themselves.  Take  the  instance  of  sheep  in  the  brute 
creation  ;  these-  will  by  the  same  process  be  associated  in 
the  mind  into  a  distinct  group,  and  so  of  other  individuals 
almost  -without  end.  These  groups,  in  regard  to  a  still 
higher  classification,  are  denominated  species.  To  enable 
us  to  converse  and  reason  with  clearness  in  anything  con- 
cerning these  species,  Ave  give  to  each  a  distinct  and  appro- 
priate name.  This  name,  from  habitual  use,  becomes  in 
conversation,  and  even  in  the  mind,  the  representative  of  its 
particular  species,  and  has,  by  some  sects  of  metaphysicians, 
been  held  to  be  the  very  essence  of  its  species.  It  is  fur- 
ther perceived,  that  there  subsists  a  general  analogy  between 
several  of  these  species,  notwithstanding  the  difference  of  the 
individuals  of  which  they  are  severally  composed.  As  be- 
tween those  already  mentioned,  the  circumstance  of  their 
having  animal  life  in  common.  From  this  general  analogy 
the  mind  refers  them  to  and  associates  them  into  a  further 
class,  which,  in  respect  to  the  species,  is  called  a  genus  or 
kind.  Thus  all  the  species  will  be  grouped  into  general 
kinds,  according  to  the  respective  analogies  apprehended  by 
the  mind.  The  same  process  is  carried  on,  the  number 
contained  in  each  decreasing  as  we  ascend,  until,  as  far  ;is 
the  human  mind  can  extend,  it  embraces  the  whole  universe. 
This  may  be  called  the  system  of  the  universe. 

A  similar  process  is  carried  on  with  similar  results  —  a 
systematic  classification  upon  all  subjects  with  which  the 
mind  is  conversant,  whether  it  be  physical  or  moral,  mate- 
rial or  intellectual,  or  of  a  mixed  or  complex  nature.      We 


APPENDIX.  279 

are  not,  however,  to  suppose  that  the  mind  is  always  con- 
scious of  exertion  in  forming  these  associations.  In  the 
early  stages  and  common  occurrences  of  life  it  appears  to 
be  an  impression  on  the  mind,  rather  than  the  effect  of 
any  immediate  exertion.  Sometimes,  indeed,  when,  from 
any  circumstance,  it  is  doubtful  to  what  class  a  subject  ought 
to  be  referred,  the  discriminating  powers  of  the  mind  are 
exerted,  as  also  in  attempting  an  accurate  arrangement  for 
scientific  purposes.  Upon  the  whole,  it  very  nearly  resem- 
bles what  is  usually  denominated  instinct.  It  must  be  con- 
sidered as  it  regards  man,  as  one  of  those  adaptations  of 
the  being  to  its  situation  and  end,  so  conspicuous  in  all  the 
works  of  the  Creator.  It  is  one  ■  of  those  things,  without 
which  man  could  take  no  one  step  in  moral  or  physical  rea- 
soning, or  direct  his  actions  to  the  attainment  of  any  end 
whatever.  The  science  of  law  is  a  civil  and  moral  sci- 
ence ;  the  science  of  the  modes  and  rules  for  administering 
justice  in  a  society  of  moral  beings. 

Whoever  examines  the  English  law,  as  a  science,  will 
find  it  formed  into  a  system  in  the  same  manner  as  has 
been  the  case  with  other  systems.  The  lowest  and  most 
minute  divisions  answering  to  individuals  ;  those  grouped 
into  heads  answering  to  species,  and  these  again  into  larger 
divisions,  ansAvering  to  genera;  and  so  on,  ascending  until 
it  embraces  the  whole,  closely  and  firmly  united,  and  distin- 
guished by  their  respective  analogies.  In  the  study  of  this 
science,  as  in  all  others,  it  is  necessary,  first,  to  take  a  gen- 
eral view  of  the  system  ;  to  obtain  a  knowledge  of  its  divi- 
sions and  their  distributions,  the  leading  rules  and  axioms ; 
in  a  word,  to  obtain  a  good  knowledge  of  its  elements.     All 


280  APPENDIX. 

this  the  attentive  student  Avill  find  in  the  volumes  of  Black- 
stone,  -which,  as  an  elementary  treatise,  has  not  been  sur- 
passed in  any  science.  The  next  Btep  proper  to  betaken 
by  the  students  is,  to  proceed  analytically;  to  begin  with 
one  branch,  and  the  minor  divisions  of  that  branch,  to 
make  himself  fully  master  of  it ;  then,  and  not  till  then,  to 
proceed  to  another  branch,  until  he  shall  have  encompassed 
within  his  knowledge  the  whole  system  complete.  In  his 
coarse  of  reading,  it  is  indispensable  for  him,  if  he  wishes 
to  make  proficiency,  to  turn  to  all  the  cases  and  authorities, 
and  to  examine  them  for  himself;  not  merely  to  find  the 
conclusion  and  point  of  the  authority,  but,  if  possible,  to 
make  himself  master  of  the  arguments  and  reasons  of  the 
author  or  judge,  which  were  relied  upon  as  leading  to  that 
conclusion. 

Here  it  is  necessary  to  observe,  that  the  reasoning  in  the 
application  of  precedents  is  wholly  analogical.  The  whole 
force  of  the  authority  depends  on  the  strength  of  the  anal- 
ogy. It  is  therefore  necessary  that  the  student  should  en- 
deavor, as  he  proceeds,  as  much  as  possible  to  acquire  a 
clear  and  distinct  perception  of  the  analogy,  in  all  and  every 
part  of  the  law  ;  that  he  may  be  able,  at  a  glance,  to 
measure,  if  I  may  use  the  expression,  the  distance  or  prox- 
imity and  direction,  and  to  estimate  its  force.  Lord 
Mansfield  observes,  in  effect,  in  the  case  of  Jones  v. 
Randal,  that  the  great  use  of  precedents  is  to  illustrate 
principles,  and  to  give  them  a  fixed  certainty  ;  without 
analogy,  they  can  afford  no  possible  illustration.  To  any 
one  who  has  no  perception  of  the  analogy,  precedents  can 
exhibit  nothing  but  an  incoherent,  indigested  and  heteroge- 


APPENDIX.  281. 

neons  mass  of  individual  cases,  leading  to  no  conclusion, 
and  affording  no  grounds  of  decision.  A  lawyer  who,  as 
sometimes  happens,  has  been  inattentive  to  analogy,  misled 
by  mere  similarity  in  a  word  or  expression,  will  not  unfre- 
quently  produce,  as  an  authority,  a  case  entirely  foreign,  or 
which  may  even  conclude  against  his  argument.  Every 
student  should  therefore  labor  to  acquire  a  ready  and  clear 
discernment  upon  this  subject. 

I  shall  conclude  with  one  observation  more.  Let  the 
student  not  content  himself  with  merely  learning  to  recollect 
or  repeat  the  arguments  and  reasons  which  he  has  met  with 
in  reading,  as  the  arguments  and  reasons  of  others  ;  but  let 
him  endeavor  so  to  penetrate,  understand  and  appropriate 
them,  that  they  may  appear  to  his  mind  to  be  exclusively  his 
own.  The  former  is  mere  memory ;  the  latter  only  is 
knowledge. 


No.  V. 


ON     THE    RIGHT    OF    PROPERTY. 


LECTURE     IV. 


LECTURE     FOURTH. 


Oi-r  present  inquiry  will  be,  whether  the  right  of  pro- 
perty, so  much  the  object  of  all  laws,  that  right  which  a  man 
claims  to  the  exclusive  possession  and  enjoyment  of  any  sub- 
ject, be  derived  from  the  laws  of  nature,  or  whether  it  origi- 
nate in  the  positive  laws  of  society. 

Judge  Blackstone,  in  the  beginning  of  the  second  book 
of  his  Commentaries,  has  treated  of  the  subject  of  property, 
but  his  attention  was  wholly  taken  up  with  the  mode  of  ac- 
quisition, the  legitimate  mode  in  which  private  property 
might  have  been  first  separated  from  the  common  mass. 
He  takes  for  granted  that  the  right  of  property  is  not  a  natu- 
ral, but  a  civil  right ;  that  it  has  its  origin  in  the  positive  laws 
of  society.  His  learned  annotator,  Mr.  Christian,  is  dissatis- 
fied with  this  opinion.  He  asserts,  that  there  is  a  law  of 
property,  which  nature  herself  has  written  upon  the  hearts 
of  mankind  :  that  the  notion  of  property  is  universal,  and  is 
suggested  to  the  mind  of  man  by  reason  and  nature,  prior  to 
all  civil  institutions.  He  has  shown  the  theory  of  Locke, 
who  derives  the  right  of  property  from  the  personal  labor  of 
the  individual,  bestowed  upon  the  thing,  in  separating  it 
3G 


286  APPENDIX. 

from  the  common  mass  and  preparing  it  for  use ;  and  of 
Grotius  and  Puffendorf,  who  make  the  right  of  property  de- 
pend on  a  tacil  agreement  for  the  separate  use  and  enjoy- 
ment, to  be  wholly  unsatisfactory,  li  is  to  be  regretted, 
that  he  has  not  given  some  further  explanation,  of  which  he 
■was  so  capable,  and  shown  how  and  why  it  is  1o  be  referred 
to  the  law  of  nature.  As  he  has  very  justly  observed,  it  is 
of  great  importance  that  moral  obligation  and  the  rudiments 
of  law  should  be  referred  to  true  and  intelligent  principles. 
"What  the  learned  annotator  has  omitted,  probably  from  the 
circumscribed  limits  of  an  annotator,  I  shall  endeavor  to 
supply. 

In  the  physical  world  Ave  discover,  in  certain  relations  and 
combinations  of  matter,  or  physical  bodies,  certain  conse- 
quent results  or  effects.  Having  learned  by  repeated  expe- 
rience of  ourselves  and  others,  from  common  experience, 
that  the  same  effects  are  constantly  and  regularly  exhibited 
by  the  same  matter  or  physical  bodies,  placed  in  the  same 
relation  and  combinations,  we  say  it  is  natural  that  the 
effects  are,  in  such  case,  produced  according  to  a  law  of 
nature.  In  many  instances,  as  in  mechanics,  that  such  will 
be  the  effect  produced  by  a  certain  combination  of  matter, 
is  a  subject  of  mathematical  demonstration.  But  we  see, 
and  can  only  see,  and  describe  the  matter,  its  relations, 
combinations,  modes  of  operation,  and  the  effects  produced, 
and  here  we  must  stop.  Why  such  should  be,  and  uni- 
formly be  the  effect,  we  can  never  explain;  we  can  only 
refer  it  to  the  constitution  of  nature,  as  established  and  or- 
dained by  the  great  Author.  It  is  the  same  in  the  moral 
world.     The  subjects  are   indeed  different,  and  so  are  the 


APPENDIX.  287 

relations  and  the  results  ;  these  are  moral,  not  physical : 
they  are  also  discerned  by  a  different  faculty,  a  moral  per- 
ception, a  faculty  of  the  mind  by  which  it  perceives  moral  sub- 
jects, relations,  and  results.  When  an  individual  is  placed 
in  a  certain  situation,  that  of  a  parent,  for  instance,  in  this 
situation  he  perceives  certain  moral  relations  subsisting  be- 
tween him  and  the  child,  from  which  he  perceives  to  result 
certain  moral  duties.  He  finds  that  all  others  have  the  same 
perception  of  the  same  relation  and  its  results ;  that  it  is 
common  to  man.  It  is  perceived,  or  rather  felt,  that  these 
duties  are  obligatory  ;  hence  it  is  considered  a  law,  a  law  of 
nature,  a  moral  law.  The  former  which  wre  mentioned  are 
the  result  of  physical  relations  and  combinations,  this  of 
moral  relations  ;  that  a  law  of  matter,  this  of  mind  ;  that  of 
physical  necessity,  this  of  moral  obligation  ;  that  we  conceive 
to  exist,  without  intelligence  or  consciousness  in  the  subject, 
this  cannot  exist  without'  intelligence  and  consciousness. 
Further,  the  latter  exists  in  social  relations  ;  exclude  social 
relations,  and  moral  obligation  is  excluded.  For  what  can 
be  the  moral  obligation  of  a  being,  in  other  respects  like 
man,  .placed  in  total  exclusion  from  all  relation  to  any  sen- 
tient, intelligent  being,  connected  with  objects  and  beings 
merely  physical  ?  Certainly  it  is  a  thing  not  easily  to  be 
conceived.  Social,  intelligent  beings  are  the  only  subjects, 
and  principal  objects  of  moral  law.  I  do  not  say  the  only 
objects,  because  I  would  willingly  extend  it  to  all  sentient 
beings.  How  do  we  determine  what  a  moral  law  is  ?  Cer- 
tainly from  a  common  perception.  Suppose  a  being,  formed 
in  other  respects  like  man,  but  never  endowed  with  the 
faculty  of  moral  perception  ;  to  such  a  being  there  could  be 


288  APPENDIX. 

no  moral  law,  no  moral  obligation.  In  any  class  of  moral 
relations,  however  complicated,  the  perception  of  the  result 
is  as  simple  as  that  of  unity.  Jt  cannot  be  communicated  to 
any  one  who  has  not  a  capability  of  the  same  moral  percep- 
tions, when  the  same  moral  relations  arc  presented  to  view. 
So  to  present  them,  is  the  great  business  of  moral  instruc- 
tion ;  the  result  must  be  referred  to  the  common  perception, 
or  as  some  writers  have  expressed  it,  to  the  common  sense 
of  mankind. 

We  are  now  prepared  to  inquire,  on  what  original  foun- 
dation rests  the  right  of  property.  Whether  it  be  recog- 
nized by  the  natural  law,  or  originates  solely  in  civil  institu- 
tions. Every  one,  attending  to  the  operations  of  his  own 
mind,  in  certain  circumstances,  perceives  between  himself 
and  some  external  objects,  certain  relations  from  which  re- 
sults to  his  mind  a  right  —  a  perception  that  the  thing  is 
his  —  a  right  of  property.  He  perceives  in 'like  circum- 
stances the  same  relations  between  another  person  and  cer- 
tain other  objects,  with  the  same  result  —  a  right  of  property, 
which  may  be  expressed,  an  exclusive  right  of  dominion  in 
and  over  the  thing  or  subject  contemplated.  He  finds  also 
that  the  perception  is  common  and  universal ;  that  all  man- 
kind, although  it  may  be  a  question  whether  the  relation  has 
arisen  in  a  particular  case,  and  under  certain  circumstances, 
agree  in  the  general  result.  If  what  has  been  before  ob- 
served concerning  the  origin  and  proof  of  physical  and  moral 
laws,  be  correct,  the  right  of  property  is  found  to  stand  on 
the  same  foundation,  for  proof  of  its  existence,  in  natural 
law,  as  any  moral  right  or  duty  whatever.  It  is  true  it 
seems  not  to  be  a  law  of  physics ;  it  seems  not  in  itself  a 


APPENDIX.  289 

moral  law,  but  it  has  an  important  place  in  a  very  extensive 
class  of  moral  relations,  from  which  moral  duties  result  —  in 
all  those  cases  in  which  the  maxim  applies,  Sic  utere  tuo  ut 
alienum  non  Icedas,  and  do  good  to  those  who  have  need, 
according  to  your  means. 

Natural  law  arises  from  the  constitution  of  man,  as  or- 
dained by  his  Creator,  and  from  the  relations  in  which  he 
has  seen  fit  to  place  him  to  other  beings  and  things.  It 
must,  therefore,  be  adapted  to  the  nature  of  social  man,  and 
tend  generally  to  his  happiness.  General  utility  is  the  end, 
and  the  final,  though  not,  I  apprehend,  as  some  have  held, 
the  efficient  cause  of  social  rights  and  moral  obligation.  If 
brought  to  this  test,  the  natural  law,  in  which  is  founded  the 
right  of  property,  will  be  found  not  only  generally  useful  to 
social  man,  but  absolutely  necessary.  It  will  be  found  in 
the  most  simple,  rude  state  of  society,  necessary  to  the  sub- 
sistence of  the  individual,  and  still  more  necessary,  in  any 
advanced  stage  of  improvement.  I  shall  add  with  some 
corrections,  a  part  of  what  I  wrote  many  years  ago  on  the 
same  subject.  As  already  observed,  the  relation  from  which 
results  the  right  of  property  seems  not  to  be  a  moral  relation, 
nor  wholly  a  corporeal  relation  of  parts.  The  relation  be- 
tween me  and  the  table  on  which  I  write  at  present,  by 
which  it  is  mine,  seems  to  have  nothing  of  a  moral  quality  in 
it,  without  the  intervening  relation  of  another  person.  It  is 
doubtless  very  simple  ;  it  has  never  been  defined,  otherwise 
than  by  the  mode  of  acquisition  ;  as  the  price  of  land  is,  As 
he  bought  it,  it  was  given  to  him,  it  came  to  him  by  descent. 
Indeed  to  simple  objects,  whether  of  substances  or  relations, 
names  are  necessary,  but  definitions  are  useless  and  imprac- 


290  APPENDIX. 

ticable.  Nature  has  denied  them  in  every  instance.  The 
discovery,  therefore,  of  a  simple  object,  a  simple  relation,  or 
of  a  result,  which  is  always  simple,  is  not  from  reasoning,  but 
from  intuition.  This  perception  of  the  relation  and  right  of 
property,  though  at  lirsi  very  limited,  a  mere  capability,  and 
like  the  other  faculties  subject  to  a  course  of  improvement, 
is  discovered  in  the  early  stages  of  life.  The  child  has 
clearly  a  sense  of  the  right  of  property,  though  very  little,  if 
any,  of  the  modes  of  acquisition.  He  appears,  before  he  is 
capable  of  consequential  reasoning,  as  clearly  to  understand 
his  right  to  his  rattle-box,  as  the  adult  to  his  horse,  purchased 
With  his  money  or  his  labor  ;  and  vindicates  his  right  of 
property  with  as  much  apparent  consciousness  of  that  right. 
The  perception,  however,  extends  little  further  than  his  own 
right ;  it  can  hardly  be  said  to  extend  to  the  rights  of  others. 
Many  brute  animals  to  which  Ave  have  denied  the  power  of 
reasoning  and  investigation,  appear  evidently  to  have  some 
sense  of  property.  Give  a  bone  to  a  dog,  he  takes  it  boldly 
as  his  own  ;  let  another  attempt  to  rob  him  of  it,  he  stands 
boldly  in  its  defence,  with  a  seeming  consciousness  of  his 
right  of  property,  Avhile  the  aggressor  approaches  with  an 
apparent  consciousness  of  his  guilt.  The  ox  claims  his  right 
to  his  stab1,  and  the  dog  to  his  wonted  corner.  Instances 
have  been  given  of  a  sense  of  this  right,  in  the  ape,  the 
beaver,  the  stork,  and  some  other  animals,  which  have  not 
fallen  under  my  observation.     I  therefore  omit  them. 

It  would  be  strange  if  Providence  had  been  less  kind  to 
man  than  to  the  brute  creation  —  man,  to  whom  property  is 
so  extensively  useful,  and  which,  in  a  state  of  society,  he- 
comes  the  object  or  instrument  of  most  of  his  moral  actions. 


APPENDIX.  291 

It  is  to  be  observed,  that  the  perception  is  only  of  the  right 
or  the  relation  which  constitutes  property,  but  extends  not  to 
the  mode  of  acquisition,  any  farther  than  they  contribute  to 
the  relation.  These  modes,  according  to  the  state  of  society, 
may  be  very  various.  In  the  early  stages  of  society,  or 
what  is  frequently  called  a  state  of  nature,  the  objects  of 
property  are  almost  as  few,  and  the  modes  of  acquisition 
nearly  as  simple  as  among  many  species  of  the  brute  crea- 
tion. The  objects  of  property  are  those  things  only  which 
are  necessary  to  support  existence.  The  modes  of  acquisi- 
tion mostly  confined  to  prior  occupancy,  and  some  trifling 
productions  of  labor.  The  simple  modes  of  gift  and  ex- 
change are  soon  added.  In  the  progress  of  society,  men 
learn  to  apply  to  their  use,  either  for  their  necessities  or 
pleasure,  most  of  the  numerous  productions  of  nature.  By 
the  assistance  of  art,  as  the  powers  of  the  mind  expand, 
they  vary  and  multiply  these  without  end.  In  proportion  as 
men  enlarge  their  views  of  what  is  useful  or  agreeable,  the 
hoarding  appetite  gains  strength ;  they  become  eager  of  the 
present,  and  provident  of  the  future.  The  objects  of  pro- 
perty become  equally  numerous  with  the  objects  of  desire. 
In  such  a  state  the  modes  of  acquisition  are  greatly  multi- 
plied, and  are  made  the  subject  of  a  great  variety  of  laws 
and  regulations.  The  whole  business  of  property  now  ap- 
pears to  be  an  artificial  system  ;  but  the  modes  of  acquisition 
and  the  means  of  protection  only  are  the  subjects  of  artificial 
regulations.  The  right  itself  of  property,  as  already  shown, 
is  founded  in  the  law  of  nature,  and  is  antecedent  to  all  civil 
regulations  ;  the  modes  of  acquisition  serve  only  to  bring 
the  subject  of  property  within  ihe  right. 


292  APPENDIX. 

Here  let  me  observe,  from  this  view  of  the  right  of  pro- 
perty, we  clearly  discover  that  it  is  not,  as  many  writers  have 
asserted,  ;i  creature  of  the  civil  law  only.  The  position, 
that,  on  a  dissolution  of  government,  all  property  is  annihi- 
lated, and  that  every  revolution  of  government,  or  radical 
change,  is  destructive  of  the  right  of  property,  is,  by  no 
means,  just.  Civil  protection  only  is  lost,  the  security  of 
enjoyment  is  endangered,  the  right  itself  founded  on  the  law 
of  nature,  remains  unchanged.  Without  this  perception, 
which  I  have  so  often  mentioned,  the  right  of  property  would 
be  but  weakly  guarded  by  the  moral  sense.  Were  it  a  dis- 
covery of  reason,  a  conclusion  from  its  convenience  in  so- 
ciety only,  it  must  want  a  considerable  maturity  of  the  rea- 
soning powers ;  it  must  be  wholly  unattainable  to  children  ; 
and  certainly  no  person  until  he  had,  in  one  way  or  another, 
attained  the  perception,  would  feel  any  obligation  of  re- 
straint. Force  alone  could  prevent  a  constant  violation  of 
the  right  of  property.  Prohibitory  laws  would  be  considered 
as  so  many  arbitrary  impositions.  How  much  better  is  the 
plan  of  Providence.  Who  can  forbear  to  admire  the  wisdom 
displayed  by  the  Author  of  our  being,  in  the  adjusting  of  the 
nature  of  man  to  that  social  and  civil  state,  which  he  has 
ever  found  necessary  not  only  to  his  happiness,  but  to  any 
tolerable  existence  in  life  ?  Deity  has  implanted  in  man  the 
germ  of  every  necessary  qualification,  and  left  to  him  the 
cultivation  ;  more,  it  is  probable,  could  not  be  indulged  to  a 
moral  agent. 


No.  6. 
OBSERVATIONS 

ON 

MR.    CALHOUN'S    EXPOSE    OF    HIS    NULLIFICATION 
DOCTRINES, 

PUBLISHED    IN    THE    RICHMOND    WHIG. 


37 


OBSERVATIONS. 


We  understand  Mr.  Calhoun  to  hold,  1,  That  the  prin- 
ciple contended  for  by  South  Carolina  (nullification,)  was 
at  the  bottom  of  the  contest  between  the  federalists  and  re- 
publicans,  (anti-federalists.) 

2.  That  the  national  government  is  a  compact  between 
separate  sovereignties,  (the  states,)  to  which  the  whole 
people  were  not  parties. 

3.  That  these  separate  sovereignties  have  the  right,  each 
for  itself,  to  judge  of  any  violation  of  that  compact  by  the 
general  government ;  and  on  this  principle  depends  the 
security  of  liberty. 

4.  That  the  supreme  court  of  the  United  States  is  not 
constituted  a  common  judge  between  the  parties.  It  has  no 
political  jurisdiction,  and  besides,  from  the  manner  in  which 
it  is  constituted,  it  cannot  be  considered  as  an  impartial  tri- 
bunal in  cases  of  this  nature. 

5.  That  in  all  free  governments  each  separate  interest 
must  have  a  right  to  protect  itself ;  that  in  questions  bearing 
on  those  interests,  the  majority,  as  such,  have  no  right,  that 
is,  of  absolute  control. 


296  APPENDIX. 

0.  That  a  slate  may  peaceably  and  efficaciously  resort 
to  the  right  of  sell-protection,  and  may,  within  the  limits  of 
its  jurisdiction,  nullity  any  law  of  the  general  government, 
bearing  hard  on  the  particular  interests  of  the  state;  still 
remaining  subject  to  all  the  laws  of  that  government,  except 
the  law  so  nullified. 

7.  That  the  tariff* is  unjust,  unconstitutional,  and  oppressive. 

8.  That  the  period  of  the  payment  of  the  national  debt  is 
the  crisis  for  which  the  southern  states  will  wait,  expecting 
a  modification  or  total  repeal  of  the  tariff  laws. 

9.  That  the  next  session  of  congress  will  be  the  only  time 
for  modifying  the  tariff",  &c. 

10.  He  does  not  define  the  remedy  to  be  adopted  if  the 
tariff  be  persisted  in,  but  leaves  us  to  suppose  it  will  be 
nullification. 

11.  He  is  indisposed  to  resort  to  any  remedy  by  state 
authority,  until  the  crisis  shall  arrive. 

12.  He  declares  himself  a  friend  to  manufactures,  and 
disposed  to  give  them  every  incidental  encouragement. 

It  is,  in  some  sense,  true,  that  the  principle  for  which 
South  Carolina  contends,  and  which  is  here  advocated  by 
Mr.  Calhoun,  —  the  right  of  a  state  to  nullify  a  law  of  the 
general  governmant,  —  was  at  the  bottom  of  the  contest  be- 
tween the  two  great  parties,  which  originated  at  the  time  of 
the  formation  and  adoption  of  the  federal  constitution, 
then  denominated  federalists  and  anti-federalists.  The  anti- 
federalists,  who  were  the  minor  party  in  the  general  conven- 
tion, objected  to  the  powers  proposed  to  be  given  to  the 
general  government,  because  they  said  those  powers  would 


APPENDIX.  297 

not  only  restrict  the  sovereignty  of  the  individual  states,  but, 
in  some  instances,  wholly  take  it  away,  so  that,  in  future, 
instead  of  being  sovereign  and  independent,  they  would  be 
nothing  more  than  corporations  subject  to  the  general  gov- 
ernment, the  constitution  of  which,  and  all  laAvs  made  in 
pursuance  of  that  constitution,  are  declared  to  be  the  su- 
preme laws  of  the  land.  The  same  objections,  in  substance, 
were  urged,  in  the  conventions  of  the  several  states,  by  those 
who  were  opposed  to  the  adoption  of  the  constitution.  It 
was  agreed  by  those  who  were  in  favor  of  its  adoption,  that 
the  constitution,  if  adopted,  would  take  from  the  individual 
states  the  independent  national  sovereignty,  and  vest  it  in 
the  general  government  for  the  whole  nation ;  that  there 
were  provided  certain  limitations  upon  the  internal  sove- 
reignty of  the  several  states,  which,  it  was  believed,  the 
general  good  required, — limitations  clearly  expressed,  and 
sufficiently  marked ;  leaving  to  each  statey  in  everything 
else,  the  whole  internal  sovereignty ,  and  that  unassailable  as 
far  as  it  could  be  guarantied  by  that  constitution.  After 
the  adoption  of  the  constitution,  and  under  the  presidency 
of  Washington,  those  who  were  opposed  to  the  adoption  of 
that  instrument  had  formed  a  strong  party,  both  in  and  out 
of  congress,  at  the  head  of  which  was  Mr.  Jefferson.  Pro- 
fessing to  be  zealous  advocates  of  state  rights,  and  fearful  of 
what  they  deemed  the  consolidating  tendency  of  the  powers 
granted  by  the  constitution,  they  soon  became  almost  indis- 
criminate opposers  of  the  measures  of  government.  Those 
who  have  had  a  personal  acquaintance  with  the  political 
transactions  of  those  times,  or  have  read  with  attention  the 
debates  in  congress,  and  the  publications  of  that  day,  will 


298  APPENDIX. 

be  convinced  that  the  party  contended,  for  the  most  part,  for 
reducing  the  powers  of  government  within  the  limits  which 
they  would  themselves  have  prescribed  in  forming  the  con- 
stitution, without  regard  to  the  actual  limits  prescribed  by 
that  instrument. 

This  contest,  like  all  contests  of  a  political  nature,  soon 
degenerated  into  a  contest  for  power,  a  contest  of  ambition, 
accompanied  with  all  the  excitement,  the  misrepresentations 
and  virulent  abuse,  to  which  political  parties  usually  resort, 
so  that  it  may  be  asserted,  with  the  confidence  of  truth,  that 
the  prevalence  of  the  party,  which  brought  Mr.  Jefferson 
into  power,  was  a  triumph  of  ambition,  a  triumph  of  party, 
not  of  principle.  This  will  appear  very  evident  to  any  one, 
who  will  impartially  examine  the  measures  pursued  by  one 
party,  the  Federalists,  under  the  administration  of  Washing- 
ton, and  the  elder  Adams,  and  the  measures  pursued  by  the 
other  party  under  the  administration  of  Mr.  Jefferson,  and 
his  successors.  He  will  find  that  the  latter  have  given,  at 
least,  as  extended  a  construction  to  the  constituted  powers 
of  congress,  and  have  pushed  their  acts  as  near  the  verge  of 
those  powers,  as  did  the  party  of  whom  they  so  loudly  com- 
plained, and  whom  they  succeeded.  They  indeed  suffered 
the  act,  establishing  the  Bank  of  the  United  States,  which 
they  had  always  condemned  as  unconstitutional,  to  expire 
by  its  own  limitation.  But,  finding  by  experience  that  it 
was  highly  expedient,  or,  in  the  language  of  the  constitution, 
that  it  was  necessary  and  proper,  to  any  economical  admin- 
istration of  the  finances,  that  there  should  be  a  bank  of  tin- 
United  States,  they  established  another  on  the  same  princi- 
ple ;i>  it  relates  to  the  constitutional  question,  as  the  former 


APPENDIX.  299 

bank.  The  purchase  of  Louisiana,  and  the  several  acts  for 
laying  and  enforcing  a  general  embargo,  are  instances  of 
constitutional  powers  taken  by  construction,  and  pushed,  one 
may  say,  to  the  extreme  point ;  and  which  were  held  by 
very  many,  among  whom  were  men  of  the  first  talents,  to  be 
unconstitutional,  particularly  the  latter,  the  embargo  laws. 
The  expediency  of  those  laws  may  well  be  doubted,  but  that 
they  were  within  the  constitutional  powers  of  congress,  is,  I 
believe,  now  doubted  by  no  discerning  jurist,  or  by  any  one 
deserving  the  character  of  a  sound  statesman.  But  there 
was  one  act  passed  during  Mr.  Jefferson's  administration, 
that  was  a  gross  violation  of  the  constitution.  Mr.  Living- 
ston, now  secretary  of  state,  then  residing  in  Louisiana,  had 
purchased  a  very  valuable  tract  of  land  in,  or  adjoining,  the 
city  of  New  Orleans  ;  it  was  reported  to  Mr.  Jefferson  as 
being  public  land,  belonging  to  the  United  States.  Mr.  Jef- 
ferson, by  message,  gave  this  information  to  congress,  and 
recommended  that  a  remedy  should  be  provided  for  the  re- 
moval of  intruders  on  public  lands.  On  which  an  act  was 
immediately  passed,  authorizing  the  president  of  the  United 
States,  on  information  of  such  intrusion,  to  issue  his  precept 
to  the  marshal  of  the  district  or  territory,  for  the  removal  of 
the  intruder.  On  which  the  president,  Mr.  Jefferson,  imme- 
diately issued  his  precept,  and  Mr.  Livingston  was  thereupon 
put  out  of  possession  without  trial  or  inquest.  Mr.  Living- 
ston, considering  the  act  as  unconstitutional,  and  the  precept 
as  illegal,  commenced  an  action  of  trespass  against  Mr.  Jef- 
ferson, in  the  circuit  court  of  Virginia  district.  But  it  failed, 
on  an  objection  taken  by  Mr.  Jefferson's  counsel,  that  the 
action  being  for  trespass  on  land,  was  local,  and   the  land 


300  APPENDIX. 

not  lying  in  the  district  of  Virginia,  it  could  not  be  there 
tried.  Mr.  Livingston  brought  an  action  for  the  recovery  of 
the  land  in  the  proper  court,  and  recovered  on  his  title. 
This  was  done  by  the  man  and  the  party  who  had  boasted 
that  the  constitution  was  saved  by  them  at  its  last  gasp. 

Mr.  Calhoun  states,  as  a  leading  principle,  that  "  the  gen- 
eral government  emanated  from  the  people  of  the  several 
states,  forming  distinct  political  communities,  and  acting  in 
that  separate  and  sovereign  capacity  ;  not  from  all  the  peo- 
ple as  one  aggregate  political  community  ;  that  the  constitu- 
tion of  the  United  States  is  in  fact  a  compact,  to  which  each 
state  is  a  party  in  the  character  already  described,  and  that 
the  several  states  or  parties  have  a  right  to  judge  of  its  in- 
fractions, and  in  case  of  a  deliberate,  palpable,  and  danger- 
ous exercise  of  powers  not  granted,  they  have  a  right,  in  the 
last  resort,  to  use  the  language  of  the  Virginia  resolutions,  to 
interpose  for  arresting  the  progress  of  the  evil." 

It  is  true  that  in  forming,  or  rather  in  executing  the  com- 
pact establishing  the  general  government,  the  people  of  the 
several  states  acted  separately,  each  for  themselves  and  their 
respective  communities  ;  still  the  binding  force  of  the  act  de- 
pended on  the  concurrent  acts  of  the  people  of  all  the  states 
in  their  separate  conventions.  The  people  in  no  instance 
acted  in  the  capacity  of  that  sovereignty,  which  by  llieir  stale 
conventions,  they  had  entrusted  to  their  then  respective  gov- 
ernments, as  organized.  They  acted  in  the  capacity  of  thai 
primitive  sovereignty,  by  which  they  had  formed  their  seve- 
r;il  state  constitutions,  retaining  the  power  of  altering  and 
modifying  ihose  constitutions,  in  each  case,  as  they  should 
find  the  public  good  to  require.     The  Federal  compacl  thus 


APPENDIX.  301 

ratified  and  executed,  by  the  people  of  each  state,  became  a 
mutual  compact  between  all  the  people  of  the  United  States, 
binding  upon  themselves  and  their  several  state  governments. 
In  strictness  of  speech,  the  people  were  the  original  parties, 
and  their  respective  states,  their  authorized  agents,  so  far  as 
empowered  by  their  several  state  constitutions,  and  the  con- 
stitution of  the  general  government.  In  this  character,  and 
so  far,  the  separate  states,  each  acting  through  the  organ  of 
its  own  government,  may  with  propriety  be  considered  as 
parties  to  the  federal  compact. 

According  to  the  principles  of  our  political  institutions,  it 
was  necessary  that  the  constitution  of  the  general  govern- 
ment should  be  submitted,  for  ratification,  to  the  people  of 
the  United  States,  because  the  acts  and  laws  of  that  govern- 
ment were  intended  to  operate,  and  to  be  carried  into  effect, 
not  upon  the  states  as  such,  but  directly  upon  the  people 
themselves.  It  was  also  necessary  that  it  should,  for  that 
purpose,  be  submitted  to  the  people  of  each,  separately  and 
distinctly,  because  it  was  necessary  to  any  beneficial  opera- 
tion of  that  government,  that  very  considerable  alterations 
should  be  made  in  all  the  existing  state  constitutions,  and 
that,  as  far  as  it  related  to  that  government,  they  should  be 
reduced  to  a  uniformity.  This  was  proposed  to  be  effected 
by  provisions  inserted  in  the  proposed  constitution  of  the 
general  government,  which  being  adopted  and  ratified  by 
the  only  competent  authority,  the  sovereign  people  of  each 
state,  by  themselves,  all  the  necessary  alterations,  modifica- 
tions, and  limitations  of  power  under  the  state  constitutions 
would  be  effected,  and  the  requisite  uniformity  produced. 
But  the  people  of  one  state  have  no  possible  right  or  power 
•     39 


302  APPENDIX. 

to  act  with  the  people  of  another  state,  in  forming,  altering, 
or  amending  their  constitution.  It  was  therefore  necessary, 
that  the  people  of  each  state  should  act  by  themselves. 

Now  if  the  people  of  the  several  states  had,  as  a  prelimi- 
nary stop,  made  the  same  alterations  in  their  several  state 
constitutions,  as  were  effected  by  the  constitution  of  the 
general  government ;  and  then  the  people  of  each  state  had 
sent  their  delegates  to  a  general  convention,  with  full  pow- 
ers for  that  purpose,  and  such  convention  had  ratified  the 
constitution  of  the  general  government,  this  act  of  ratifica- 
tion would  have  been  the  act  of  the  sovereign  people  of  each 
state,  equally  binding  on  themselves,  and  their  respective 
governments  ;  and  the  states  would  have  been  parties  to  the 
compact  in  the  same  sense  that  they  now  are,  and  no  other. 
It  is  not  in  the  power  of  human  ingenuity  to  find  or  make 
an  available  distinction  in  the  result. 

In  fact,  however,  the  great  question  is,  not  whether  the 
individual  states  are  in  any  sense  parties  to  the  compact,  but 
what  character  they  sustain  as  parties.  The  writer  seems 
to  have  been  sensible  of  this  ;  he  has,  therefore,  as  well  as 
those  whom  he  cites  as  authority,  without  hazarding  any 
proof  or  argument,  assumed  that  the  states  among  them- 
selves, and  in  their  relation  to  the  general  government,  sus- 
tain the  right,  the  power  and  character  of  independent  sove« 
rcignties.  Hence  is  claimed  the  right  of  each  to  judge  for 
itself.  If  what  is  here  assumed  be  true,  it  is  also  true,  that 
in  questions  arising  between  one  Btate  and  another,  and 
between  a  state  and  the  general  government,  no  common 
judge  can  be  authoritatively  interposed. 

To  come  to  a  proper  decision  on  llns  subject,  it  is  neces* 


APPENDIX.  "  303 

sary  to  examine  it  a  little  more  at  large.  This  right  of  a 
state,  under  our  government,  to  judge  definitely  for  itself,  of 
the  constitutionality  of  an  act  of  congress,  has  been  gen- 
erally, if  not  universally,  claimed  by  its  advocates  as  a  right 
reserved  to  the  state,  by  the  12th  article  of  amendments  to 
the  constitution,  which  is  in  these  words  :  —  "  The  powers 
not  delegated  to  the  United  States,  by  the  constitution,  nor 
prohibited  by  it  to  the  states,  are  reserved  to  the  states  re- 
spectively or  to  the  people."  Now  the  grant  of  a  power 
contains,  not  only  the  power  literally  expressed,  but  by  una- 
voidable inference,  all  those  subordinate  powers,  without 
which  the  power  expressed  could  not  have  any  effect,  or 
the  effect  manifestly  intended.  So  in  regard  to  prohibited 
powers.  The  prohibition  extends  not  only  to  those  powers, 
which  are  expressly  prohibited,  but  such  as  are  compre- 
hended by  necessary  inference,  or,  which  remaining,  would 
defeat  the  prohibition.  Those  powers  are  also  in  this  view 
to  be  considered  as  prohibited  which  are  exclusively  dele- 
gated, or  being  delegated,  from  their  nature,  or  the  nature 
of  the  subject,  cannot  be  exercised  both  by  the  government 
of  the  United  States  and  the  state  governments  at  the  same 
time. 

This  is  a  sound  and  universal  rule  of  construction,  under- 
stood and  acted  upon  by  those  who  proposed,  and  those 
who  adopted,  the  constitution  and  the  amendments.  In- 
deed, the  amendment  is  merely  declaratory  of  the  con- 
struction originally  intended,  and  Avell  understood.  It  was 
inserted  merely  from  abundant  caution.  Keeping  in  mind 
this  rule  of  construction,  let  us  inquire  whether  the  right  of 
a  state  to  pass,  for  itself,  a  final  judgment  on  the  constitu- 


304  AT  P  EM)  IX. 

tionality  of  a  law  of  congress,  which  necessarily  implies  the 
sovereignly  and  independence  of  the  state,  from  which  alone 
it  can  be  derived,  is  one  of  the  rights  reserved  in  tin-  amend- 
ment above  recited.  If  this  right,  and  the  power  from  which 
it  must  have  been  derived,  are  included  in  the  reservation, 
the  power  must  have  existed  in  the  several  states  at  the 
time  of  the  compact,  and  by  that  compact  have  not  been 
prohibited  to  the  states,  either  expressly  or  by  unavoidable 
inference,  agreeably  to  the  rale  of  construction  laid  down. 
That  an  equivalent  power  existed  in  the  several  states  under 
the  old  confederation,  cannot  and  need  not  be  denied.  It 
was  the  result  of  that  independent  sovereignty  then  possessed 
by  each  state.  The  old  confederation  was  not  a  national 
union,  but  a  federal  connection,  — a  league  between  thirteen 
sovereign,  independent  states,  —  or  we  may  with  propriety 
say,  nations,  by  which  they  agreed  to  submit  the  manage- 
ment of  their  common,  concerns  to  a  congress,  the  members 
of  which  were  appointed  by  each  state,  and  in  whose  de- 
liberations each  state  had  an  equal  voice.  Under  that  confed- 
eration there  was  no  establishment  of  a  judiciary  to  be  a 
common  judge  between  the  parties  ;  no  efficient  executive 
power  to  carry  their  measures  into  effect.  The  ordinances 
and  acts  of  that  body,  therefore,  notwithstanding  any  style 
of  authority  they  might  assume,  were,  in  all  things  relating 
to  the  states,  merely  recommendatory  of  certain  measures 
which  could  not  be  carried  into  effeel  without  the  concurrent 
act  of  each  and  every  state  in  whom  resided  the  judiciary 
and  only  efficient  executive  powers.  A  lull  conviction  from 
experience  of  the  utter  inefficiency  of  that  government,  if  it 
deserved  the  name  of  government,  which  dissolving  in  its 


APPENDIX.  305 

own  weakness,  and  threatening  general  anarchy  or  dissolu- 
tion, even  of  the  state  governments  themselves,  led  to  the 
formation  and  adoption  of  the  present  constitution  of  the 
United  States.  .It  becomes,  then,  an  important  question, 
how  far  and  to  what  purposes  that  independent  sovereignty, 
which  previously  existed  in  the  states  severally,  was,  by  the 
adoption  and  ratification  of  the  constitution,  transferred  by 
the  sovereign  people  of  each,  to  the  general  government, 
and  its  exercise  prohibited  to  the  several  states,  with  certain 
limitations  on  their  internal  sovereignty,  which  it  was  be- 
lieved the  general  and  national  interests  required.  Mr.  Cal- 
houn has  cited  several  authorities  in  support  of  his  assump- 
tion of  state  rights,  but  has  not  referred,  as  I  think,  in  a  sin- 
gle instance,  to  the  authority  of  the  constitution,  which,  as 
he  considers  the  right  claimed,  as  a  right  reserved  to  the 
states  in  the_ amendment  recited,  and  therefore  a  constitu- 
tional right,  ought  to  be  considered  paramount  to  all  others. 
Before  I  examine  his  authorities,  I  shall  recite  from  the  con- 
stitution the  powers  delegated  to  congress,  the  limitations 
and  modifications  of  those  powers,  and  the  prohibitions  and 
limitations  imposed  on  the  powers  of  the  several  states. 
From  these,  and  these  alone,  can  we  learn  whether  the 
power,  from  which  alone  the  contested  state  right  can  be 
derived,  could  possibly  remain  to  be  a  subject  of  reservation. 

The  principal  powers  delegated  to  congress  are  contained 
in  the  first  article  of  the  constitution,  as  follows  : 

Sec.  8th.  The  congress  shall  have  power  to  lay  and  col- 
lect taxes,  duties,  imposts,  and  excises  ;  to  pay  the  debts, 
and  provide  for  the  common  defence,  and  general  welfare  of 
the  United  States  ;  —  to  borrow  money  on  the  credit  of  the 


306  APPENDIX. 

United  States  ;  —  to  regulate  commerce  with  foreign  nations, 
and  among  the  several  states,  and  with  the  Indian  tribes ;  — 
to  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcy,  throughout  the  United 
States  ;  —  to  coin  money,  regulate  the  value  thereof,  and  of 
foreign  coin,  and  fix  the  standard  of  weights  and  measures  ; 
—  to  provide  for  the  punishment  of  counterfeiting  the  secu- 
rities and  current  com  of  the  United  States  ;  —  to  establish 
post-offices  and  post  roads  ;  —  to  promote  the  progress  of 
science ;  —  to  constitute  tribunals  inferior  to  the  supreme 
court;  —  to  define  and  punish  piracies  and  felonies,  com- 
mitted on  the  high  seas,  and  offences  against  the  law  of  na- 
tions ;  —  to  declare  Avar,  grant  letters  of  marque  and  repri- 
sals, and  make  rules  concerning  captures,  both  on  land  and 
water  ;  —  to  raise  and  support  armies ;  —  to  provide  and 
maintain  a  navy  ;  —  to  make  rules  for  the  government  and 
regulation  of  the  land  and  sea  forces;  —  to  provide  for 
calling  forth  the  militia  to  execute  the  laws  of  the  Union,  to 
suppress  insurrections  and  repel  invasions;  —  to  provide  for 
organizing  and  arming  the  militia,  and  for  governing  such 
part  of  them  as  may  be  employed  in  the  actual  service  of  the 
United  States,  reserving  to  the  states  respectively  the  ap- 
pointment of  the  officers,  &c.  To  make  all  such  laws  as 
shall  be  necessary  and  proper  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this 
constitution  in  the  government  of  the  United  States,  or  any 
department  or  officer  thereof. 

Sec  10th.  No  state  shall  enter  into  any  treaty,  alliance  or 
confederation  ;  grant  letters  of  marque  and  reprisal ;  coin 
money,    emit  bills  of   credit,  make  anything  but  gold  and 


APPENDIX.  307 

silver  coin  a  tender  in  payment  of  debts  ;  pass  any  bill  of 
attainder,  ex  post  facto  law,  or  law  impairing  the  obligation 
of  contracts,  or  grant  any  title  of  nobility.  No  state  shall, 
without  the  consent  of  congress,  lay  any  imposts,  or  duties 
on  imports  or  exports,  except  what  shall  be  absolutely  ne- 
cessary for  executing  its  inspection  law,  &c.  No  state  shall, 
without  the  consent  of  congress,  lay  any  duty  of  tonnage, 
keep  troops  or  ships  of  war  m  time  of  peace,  enter  into  any 
compact  or  agreement  with  another  state,  or  with  a  foreign 
power,  or  engage  in  war  unless  actually  invaded,  or  in  such 
imminent  danger  as  will  not  admit  delay. 

The  second  article  provides  for  an  executive  power. 

Sec.  1st.  The  executive  power  shall  be  vested  in  a  presi- 
dent of  the  United  States  of  America.  He  shall  hold  his 
office  for  four  years.  (The  remainder  of  the  section  pro- 
vides for  his  appointment,  together  with  that  of  the  vice 
president.) 

Sec.  2d.  The  president  shall  be  commander-in-chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  states  when  called  into  the  actual  service  of  the  Uni- 
ted States.  And  shall  have  power  to  grant  reprieves  and 
pardons  for  offences  against  the  United  States,  except  in 
cases  of  impeachment.  He  shall  have  power,  by  and  with 
the  advice  and  consent  of  the  senate,  to  make  treaties,  pro- 
vided two-thirds  of  the  senators  present  concur.  He  shall 
nominate,  and,  by  and  with  the  advice  and  consent  of  the 
senate,  appoint  ambassadors  and  other  public  ministers  and 
consuls,  judges  of  the  supreme  court,  and  all  other  officers 
of  the  United  States  whose  appointments  are  not  herein  oth- 
erwise provided  for,  and  which  shall  be  established  bv  law. 


308  APPENDIX. 

Sec.  3d.  He  shall  from  lime  to  time  give  to  congress  in- 
formation of  the  state  of  the  union,  &c.  &c.  He  shall  re- 
ceive ambassadors  and  other  public  ministers,  and  shall  take 
care  that  the  laws  be  faithfully  executed,  and  shall  commis- 
sion all  officers  of  the  United  States. 

The  third  article  provides  for  a  judiciary. 

Sec.  1st.  The  judicial  power  of  the  United  States  shall  be 
vested  in  one  supreme  court,  and  in  such  inferior  courts  as 
congress  may,  from  time  to  time,  ordain  and  establish.  The 
judges,  both  of  the  supreme  and  inferior  courts,  shall  hold 
their  offices  during  good  behavior,  and  shall,  at  stated  times, 
receive  for  their  services  a  compensation,  which  shall  not  be 
diminished  during  their  continuance  in  office. 

Sec.  2d.  The  judicial  power  shall  extend  to  all  cases  in 
law  and  equity,  arising  under  the  constitution,  the  laws  of 
the  United  States,  and  treaties  made,  or  which  shall  be  made 
under  their  authority.  In  all  cases  afFecting  ambassadors, 
and  other  public  ministers  and  consuls  ;  to  all  cases  of  ad- 
miralty and  maritime  jurisdiction  ;  to  controversies  to  which 
the  United  States  shall  be  a  party  ;  to  controversies  between 
two  or  more  states,  —  between  a  state  and  citizens  of  an- 
other state,  —  between  citizens  of  different  states,  —  between 
citizens  of  jLhe  same  state  claiming  lands  under  grants  of 
different  states,  —  and  between  a  state,  or  ihe  citizens  there- 
of, and  foreign  states,  citizens  or  subjects.  But,  by  an 
amendment  to  the  constitution,  it  is  provided,  thai  the  judi- 
cial power  shall  not  be  considered  to  extend  to  any  suit  in 
law  or  equity,  commenced  againsl  one  of  the  United  States 
by  the  citizens  of  another  state,  or  by  the  citizens  or  subjects 
of  any  foreign  state.     In  all  eases  affecting  ambassadors, 


APPENDIX.  309 

other  public  ministers  and  consuls,  and  those  to  which  a 
state  shall  be  a  party,  the  supreme  court  shall  have  original 
jurisdiction  ;  in  all  other  cases  before  mentioned,  the  supreme 
court  shall  have  appellate  jurisdiction,  both  as  to  law  and 
fact,  with  such  exceptions  and  under  such  regulations  as  con- 
gress shall  make. 

Art.  4th,  sec.  1st.  Full  faith  and  credit  shall  be  given  in 
each  state  to  the  public  acts,  records  and  judicial  proceed- 
ings of  every  other  state,  and  the  congress  may,  by  general 
laws,  prescribe  the  manner  in  which  such  acts,  records,  and 
proceedings  shall  be  proved,  and  the  effect  thereof. 

Sec.  3d.  New  states  may  be  admitted  by  congress  into 
this  Union  ;  but  no  new  state  shall  be  formed,  or  erected 
within  the  jurisdiction  of  any  other  state;  nor  any  state  be 
formed  by  the  junction  of  two  or  more  states,  or  parts  of 
states,  without  the  consent  of  the  legislatures  of  the  states 
concerned,  as  well  as  of  congress. 

Sec.  4th.  The  United  States  shall  guaranty  to  every  state 
in  this  Union,  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion  ;  and  on  the  application 
of  the  legislature,  or  of  the  executive  when  the  legislature 
cannot  be  convened,  against  domestic  violence. 

Art.  5th.  This  constitution  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  land; 
and  the  judges  in  every  state  shall  be  bound  thereby  ;  any- 
thing in  the  constitution  or  laws  of  any  state  to  the  contrary 
notwithstanding. 

The  senators  and  representatives  before  mentioned,  and 
39 


310  APPENDIX. 

the  members  of  the  several  state  legislatures,  and  all  execu- 
tive and  judicial  officers,  both  of  the  United  States,  and  of 
the  severa]  stales,  shall  be  bound  by  oath  to  support  this 
constitution. 

On  a  fair,  open  and  candid  examination  of  the  articles 
above  recited,  it  cannot  be  denied  that  the  sovereign  people 
of  the  several  states,  each  acting  for  themselves,  bill  with  a 
reciprocal  view  to  the  acts  of  all,  did,  by  the  ratification  of 
that  solemn  covenant,  the  constitution  of  the  United  States, 
delegate  to  the  general  government,  all  those  powers  in 
which  the  independent  sovereignty  of  a  state  or  nation,  in 
the  common,  as  well  as  the  technical  understanding  of  the 
term,  consists  ;  and  did  further  prohibit  to  the  several  states 
the  exercise  of  those  powers,  and  even  of  some  other  speci- 
fied powers,  the  exercise  of  which  by  the  several  stales 
might  obstruct  the  national  union  intended,  and  the  recipro- 
cal enjoyment  of  national  privileges,  by  the  citizens  through- 
out the  whole.  There  is  also  by  the  same  instrument 
established,  an  executive  power,  charged  with  the  faithful 
execution  of  the  laws,  and  a  judicial  power  to  be  vested  in  a 
supreme  court,  and  in  such  inferior  courts  as  congress  may 
ordain  and  establish,  with  a  provision  for  rendering  the 
judges  as  independent  and  impartial  as  could  be  devised  by 
human  wisdom.  This  judicial  power  is  expressly  extended 
to  all  cases  in  law  and  equity,  arising  under  the  constitution 
and  laws  of  the  United  States,  and  treaties  made  under  their 
authority;  and  among  other  things,  to  controversies  to 
which  the  United  States  shall  be  a  party  —  to  controversies 
between  two  or  more  states,  &c. 

Here  we  find  a  tribunal  appointed  to  be  a  common  judge 


APPENDIX.  311 

in  all  constitutional  questions  that  may  arise  between  the 
parties,  expressly  including,  among  others,  the  United  States 
and  the  several  states,   as  such  parties.     Nor   is  there   any 
case,  so  arising,  excepted  from  the  authority  of  its  decisions. 
And  when  Ave  find  it  further  declared  by  the  same  compact, 
and  by  the  same  competent  authority,  the  sovereign  people, 
that  the  constitution  which   embraces   all  its  provisions  in 
every  department,  and  all  laws  made  in  pursuance   thereof, 
shall  be  the  supreme  law  of  the  land,  binding  on  the  judges 
of  every  state,  notwithstanding  anything  in  the   constitution 
or  laws  of  any  state  to  the  contrary  ;  and  that,  not  only  the 
senators  and  representatives  in  congress,  but  the  members  of 
the  state  legislatures,  and  all  executive  and  judicial  officers, 
both  of  the  United  States  and  of  the  several  states,  shall  be 
bound  by  oath  or  affirmation  to  support  the  constitution,  — 
it  would  appear  utterly  impossible,  that  any  rational  being, 
capable  of  understanding  what  he  reads,  should  maintain 
that  each  state  in  the  Union  has  a  constitutional  right  to 
judge  for  itself  definitely  of  the  constitutionality  of  an  act  of 
congress,  and  if  so  judged  to  be  unconstitutional,  to  suspend 
its   operation  within   the   jurisdictional  limits  of  the  state. 
And  yet  such  is  the  opinion  maintained  by  Mr.  Calhoun. 
He  has  not  in  any  part  of  his  expose  examined  the  powers 
delegated  to  the  general  government,  nor  the  powers  prohib- 
ited to  the  states,  by  the  constitution  of  the  United  States, 
declared  to  be  the  supreme  law  over  all  the  states,  repeal- 
ing, in  effect,  and  nullifying  every  claim  of  right,  every  grant 
of  power   in  their  several   constitutions,   conflicting,  or  not 
consistent  with  the  provisions  of  that  instrument.     He  has 
gratuitously  assumed  the  power,  and  the   right  as  remaining 


312  APPENDIX. 

in  the  several  states,  and  therefore  reserved  to  them  by  the 
amendments  to  the  constitution.  Instead  of  the  constitution, 
he  has  reposed  on  several  authorities,  which,  from  their 
weight  of  character,  and  the  reasonings  accompanying  them, 
he  considers  to  be  irresistible.  Although  I  think  the  consti- 
tution alone,  when  fairly  examined,  conclusive  upon  this 
subject,  I  will  nevertheless  proceed  to  a  fair  and  full  exam- 
ination  of  his  authorities.  Let  us  then  consider,  first, 
what  weight  ought  to  be  conceded  to  them  as  authorities, 
when  we  consider  the  circumstances  and  situation  of  the 
authors  themselves ;  in  doing  which,  we  may  briefly  con- 
sider some  opposing  authorities,  —  and,  secondly,  consider 
the  force  of  their  reasonings,  and  the  justness  of  their  con- 
clusions. 

The  origin  of  the  two  parties,  and  the  causes  of  their  hos- 
tility toward  each  other,  has  already  been  mentioned.  To 
these  causes  were  soon  added  others,  of  a  still  more  exciting 
nature.  Not  long  after  the  organization  of  the  government 
of  the  United  States  under  the  federal  constitution,  the 
French  revolution  broke  out.  At  its  commencement  it  was 
hailed  by  all  parties  in  this  country  as  the  dawn  of  liberty  to 
Europe,  and  the  commencement  of  a  new  and  glorious  era, 
in  the  progress  of  which  they  beheld,  in  imagination,  the 
downfall  of  tyrannical  and  despotic  governments,  and  the 
people  and  nations  of  that  quarter  of  the  globe  restored  to 
thek  rights,  to  the  enjoyment  of  happiness  under  libera] 
institutions,  all  tending  to  the  amelioration  of  the  whole 
human  race.  But  the  scenes  of  anarchy  and  blood  thai 
ensued,  the  atrocities  enacted  by  the  leaders,  who  succes- 
sively fell  under  the  guillotine,  to  make  room  for  their  more 


APPENDIX.  313 

successful,  but  not  less  atrocious  rivals,  soon  darkened  the 
prospect,  and  disgusted,  very  generally,  the  federal  party, 
then  constituting  a  powerful  majority  ;  while  the  anti-federal 
party,  who  soon  assumed  the  name  of  democratic,  and 
afterwards  that  of  the  republican  party,  fraternized  with  the 
French  revolutionists,  and  either  excused  or  justified  all 
their  atrocities.  And  when,  soon  after,  the  French  nation, 
having  formed  somewhat  of  a  more  regular  government, 
had  become  involved  in  war  with  the  great  powers  of 
Em-ope,  in  violation  of  existing  treaties,  as  well  as  of  the 
known  law  of  nations,  let  loose  their  cruisers  upon  the  com- 
merce of  unoffending  neutrals,  of  which  the  United  States 
then  had  the  greatest  share,  and  were  ready  to  sweep  it 
from  the  ocean,  that  party  still  maintained  their  predilec- 
tions, still  excused  or  justified  all  those  depredations,  by 
which  our  merchants  were  robbed  of  millions.  Our  govern- 
ment remonstrated  against  these  measures.  The  French 
government  treated  their  remonstrances  with  contempt,  and 
their  ministers,  sent  to  negotiate  on  the  subject,  were  treated 
with  neglect  or  contumeliously  dismissed.  Whereupon  con- 
gress determined  to  take  measures  for  protecting  their 
citizens  and  their  commerce,  and  placed  the  nation  in  a 
state  of  war  with  France.  Both  parties  were  now  in  the 
highest  state  of  excitement,  and  the  nation  was  inundated 
with  violent  and  inflammatory  publications,  issuing  from  the 
presses  on  each  side  against  their  opponents.  The  presses 
of  the  republican  party  were  daily  uttering  the  vilest  calum- 
nies, replete  with  the  most  unfounded  falsehoods,  against  the 
majority  in  congress  and  the  principal  functionaries  of  the 
government,  especially  against  the  president,   Mr.  Adams. 


314  APPENDIX. 

At  this  crisis,  congress  passed  two  acts,  which  added  much 
to  the  excitement  of  parties.  The  one,  enabling  the  presi- 
dent to  send  suspected  aliens  out  of  the  country,  commonly 
called  the  alien  act ;  the  other,  an  act  for  punishing  any 
person  who  should  publish,  by  Writing,  any  libellous  matter 
against  the  president,  for  any  act  done  in  the  execution  of 
his  official  duties,  commonly  called  the  sedition  law,  with  a 
provision  that  any  person  prosecuted  under  the  act,  should 
have  the  liberty  and  right  to  prove,  in  his  defence,  on  trial, 
the  truth  of  the  matter  published.  The  latter  act  the  more 
exasperated  the  party  in  opposition,  because  they  foresaw 
that  its  penalties  would  fall  Avholly  upon  the  writers  and 
presses  on  their  side  ;  they  therefore  denounced  it  in  no 
measured  terms,  as  an  usurpation  of  powers  not  granted  — 
a  palpable  violation  of  the  constitution,  by  abridging  the  free- 
dom of  the  press,  so  solemnly  and  expressly  guarantied  by 
that  constitution.  A  large  majority  of  the  people  of  Vir- 
ginia, and  consequently  of  their  legislature,  were  zealously 
devoted  to  the  party  in  opposition,  and,  indeed,  were  the  life 
and  soul  of  the  party  at  that  time.  Such  was  the  situation 
of  the  authors,  and  such  the  occasion  of  those  resolutions, 
both  in  Virginia  and  in  Kentucky.  In  the  passage  of  the 
two  acts  above  mentioned,  according  to  their  construction, 
they  found  the  case  of  that  deliberate,  palpable,  and  dan- 
gerous exercise  of  a  power  not  granted,  in  which  it  is  as- 
sumed the  several  states,  not  the  people,  are  the  parties  to 
the  constitutional  compact,  and  have  ;i  right,  as  such,  to 
judge,  and  "  to  interpose  for  arresting  the  progress  of  tin- 
evil,  :iii(l  lor  maintaining,  within  their  respective  limits,  the 
rights  and  liberties  appertaining  to  them." 


APPENDIX.  315 

These  resolutions  were  communicated  to  all  the  other 
states.  The  legislature  of  Massachusetts  replied  to  them  in 
full,  affirming  the  constitutionality  of  the  laws  in  question, 
and  denying  the  right  of  the  several  states  to  judge  and  to 
interpose  in  the  manner  asserted.  Resolutions,  in  accord- 
ance with  those  of  Massachusetts,  were  passed  by  several  of 
the  other  states,  not,  as  I  believe,  exceeding  three  or  four  ; 
others  passed  the  matter  over  in  silence.  It  will  not  now  be 
denied,  that  those  who  passed  upon  these  latter  resolutions 
were  equal,  in  point  of  talents,  to  their  opponents.  At  the 
same  time,  it  must  be  acknowledged  they  were  equally  in- 
flamed with  party  zeal,  equally  ambitious  of  retaining  the 
administration  of  the  government  in  the  hands  of  this  party, 
as  were  the  others  for  obtaining  it  for  themselves  ;  simply,  in 
point  of  authority,  they  stand  on  equal  ground.  The  author- 
ity of  Mr.  Jefferson  on  this  subject  is  opposed  by  the  same 
objections,  but  which  apply  to  him  with  augmented  force. 
He  stood  unrivalled  at  the  head,  and  was,  in  fact,  the  oracle 
of  his  party  ;  by  them  destined  to  enjoy  the  first  fruit  of 
their  expected  triumph,  by  being  elevated  to  the  presidency 
of  the  United  States,  the  great  and  ultimate  object  of  his 
ardent  ambition.  But  let  us  turn  to  his  opinions.  It  is  well 
known  to  the  writer  of  this,  and  to  all  who  were  personally 
acquainted  with  Mr.  Jefferson  at  the  time,  that  his  opinion 
upon  the  unconstitutionality  of  the  sedition  law,  was  in  ac- 
cordance with  that  of  the  Virginia  legislature,  —  if  he  did 
not  dictate  that  opinion,  —  he  held  that  it  was  an  abridg- 
ment of  the  freedom  of  the  press,  and  was,  therefore,  the 
assumption  of  a  power,  not  only  not  granted,  but  a  power 
expressly  withheld.     Tic  also  held  the  alien  law  to  be  un- 


316  APPENDIX. 

constitutional.  Thai  his  opinion  on  the  subject  of  slate 
rights  was  the  same  as  thai  expressed  in  the  resolutions,  is 
evident  from  the  citations  made  by  Calhoun.  Instead  of 
opposing  to  these  opinions,  the  opinions  of  the  several  judges 
of  the  supreme  court,  judicially  pronounced,  I  will  produce 
some  of  the  citizens  of  Virginia,  not  less  illustrious  than  Mr. 
Jefferson.  Notwithstanding  the  great  majority  of  the  oppo- 
sition party  in  Virginia,  there  was  a  respectable  minority, 
who  supported  the  measures  and  acts  of  the  general  govern- 
ment, and  were  wholly  opposed  to  the  opinions  and  doc- 
trines expressed  in  the  resolutions  of  their  state  legislature, 
and,  of  course,  to  Mr.  Jefferson's  opinions  on  the  same  sub- 
ject. Among  others,  was  the  present  Chief  Justice  Marshall, 
who  was  a  representative  from  that  state  in  the  second  con- 
gress, under  President  Adams's  administration;  and  the  well 
known  Patrick  Henry  —  both  eminent  for  talents  and  judi- 
cial knowledge.  The  character  of  Patrick  Henry,  as  a  jurist, 
stood  as  high,  and  his  opinion,  in  all  matters,  not  affecting 
party  interest,  had  as  much  weight  as  that  of  any  man  in  the 
state,  I  may  safely  say  more  ;  certainly  more  than  Mr.  Jef- 
ferson, who,  however  eminent  as  a  party  politician,  and 
for  his  profound  knowledge  in  the  law  of  nations,  was  not 
considered  equally  eminent  as  a  jurist.  Mr.  Henry  offend 
himself  as  a  candidate  for  election  for  the  succeeding  session 
of  the  state  legislature,  on  which  occasion  he  published  an 
address  to  the  electors  of  the  district,  in  which  Ik1  freely  ex- 
pressed  his  sentiments  of  the  slate  of  parties,  and  of  their 
politics.  He  gives  it  as  his  deliberate  opinion,  that  ihc  laws 
so  much  reprobated,  were  both  constitutional,  both  within  ihe 
powers  delegated  to  the  general  government ;  that  the  power 


APPENDIX.  317 

to  remove  suspected  aliens,  in  a  situation  like  that  then  exist- 
ing, was  a  necessary  incident  of  the  war  power ;  that  the 
sedition  law  in  no  wise  abridged  the  freedom  of  the  press, 
but  applied  a  wholesome  correction  to  its  licentiousness  ;  and 
that  congress  had  the  same  constitutional  power  and  right  to 
provide  for  the  punishment  of  false  and  slanderous  libels  on 
any  official  acts  of  the  president,  which  might  have  a  direct 
tendency  to  impair  their  due  efficiency,  as  they  had  to  pro- 
vide for  the  punishment  of  an  opposition,  by  violence,  to  any 
officer  of  the  government,  in  the  legal  execution  of  his  au- 
thority. He  also  reprobated  the  doctrine  of  state  rights,  as 
assumed  in  the  Virginia  resolutions.  I  will  adduce  one  more 
authority,  which,  in  my  view,  very  much  weakens,  if  it  does 
not  wholly  destroy  Mr.  Jefferson's  authority,  as  to  the  con- 
stitutionality of  the  sedition  law — the  authority  of  Mr. 
Jefferson  himself.  In  his  inaugural  address,  on  entering 
upon  the  second  term  of  his  presidency,  in  March,  1805, 
after  recapitulating  the  measures  of  his  administration,  he 
goes  on  to  say  :  "  During  this  course  of  administration,  and 
in  order  to  disturb  it,  the  artillery  of  the  press  has  been  lev- 
elled against  us,  charged  with  whatever  its  licentiousness 
could  devise  or  dare.  These  abuses  of  an  institution,  so 
important  to  freedom  and  science,  are  deeply  to  be  re- 
gretted, inasmuch  as  they  tend  to  lessen  its  usefulness,  and 
to  sap  its  safety.  They  might,  indeed,  have  been  corrected 
by  the  wholesome  punishment,  reserved  to,  and  provided  by, 
the  laws  of  the  several  states,  against  falsehood  and  defama- 
tion ;  but  public  duties,  more  urgent,  pressed  on  the  time  of 
public  servants,  and  the  offenders  have,  therefore,  been  left 
to  find  their  punishment  in  the  public  indignation.  Nor 
40 


318  APPENDIX. 

was  it  uninteresting  to  the  world,  that  an  experiment  should 
be  fairly  and  fully  made,  whether  freedom  of  discussion,  un- 
aided by  power,  be  not  sufficient  for  the  propagation  and 
protection  of  truth. "  After  some  observations  on  the  suc- 
cess of  the  experiment,  he  continues  :  "  No  inference  is  here 
intended,  that  the  laws  provided  by  the  states  against  false 
and  defamatory  publications,  should  not  be  enforced.  He 
who  has  time,  renders  a  service  to  public  morals  and  public 
tranquillity,  in  reforming  these  abuses  by  the  salutary  cor- 
rections of  law.  But  the  experiment  is  noted  to  prove,  that, 
since  truth  and  reason  have  maintained  their  ground  against 
false  opinions,  in  league  with  false  facts,  the  press,  confined 
to  truth,  needs  no  other  legal  restraint.  The  public  judg- 
ment will  correct  false  opinions  and  reasoning,  on  a  full 
hearing  of  all  parties  ;  and  no  other  definite  line  can  be 
drawn  betAvecn  the  inestimable  liberty  of  the  press,  and  its 
demoralizing  licentiousness." 

Mr.  Jefferson  well  knew  that  there  were  laws  in  every  state, 
either  enacted  by  statute,  or  adopted  from  the  common  law, 
for  the  punishment  of  libels,  affecting  characters,  public  and 
private.  He  also  knew  that  the  constitution  of  each  state  con- 
tained  an  imperative  declaration,  of  precisely  the  same  force 
and  effect,  though  not  always  in  the  same  words,  as  in  the 
constitution  of  the  United  States.  It  is  evident,  therefore, 
that  whatever  might  have  been  his  former  opinions,  lie  now 
admitted  and  approved  the  distinction,  between  the  freedom 
and  the  licentiousness  of  the  press  ;  the  former  of  which 
could  not  be  abridged,  without  the  violation  of  an  important 
constitutional  right;  but  the  latter,  the  licentiousness  of  the 
press,  might,  and  ought  to  be  restrained,  by  what  he  calls 


APPENDIX.  319 

the  salutary  correction  of  law.  This  concession,  it  is 
granted,  although  it  silences* the  principal  objection,  urged 
at  the  time,  against  the  constitutionality  of  the  act,  does  not 
cover  the  Avhole  ground.  It  was  said  to  be  the  exercise  of  a 
power  not  granted,  and  Mr.  Jefferson  spoke  of  it  as  a  power 
reserved  to  the  states.  Now  it  is  conceded  that  congress, 
generally  speaking,  have  not  the  power  to  punish  crimes, 
merely  as  moral  or  civil  offences.  But  the  power  of  con- 
gress is  necessarily,  I  may  say  expressly,  extended  to  the 
punishment  of  all  crimes  that  immediately  and  injuriously 
affect  the  government,  injuriously  obstruct  its  legitimate 
measures  or  impair  its  efficiency,  in  carrying  into  effect  any 
of  its  constitutional  powers,  in  any  of  its  departments  or 
offices. 

It  is  true,  the  opinion  we  have  just  been  examining,  was 
not  produced  by  Mr.  Calhoun  as  an  authority ;  but  as  the  act 
of  congress  upon  which  this  opinion  was  expressed,  was  the 
principal  occasion  of  those  resolutions,  and  was  chiefly  relied 
on  as  justifying  the  principles  which  they  adopted  and  sanc- 
tioned, its  discussion  here  cannot  be  considered  altogether  a 
digression. 

We  shall  now  proceed  to  examine  the  opinions  of  Mr. 
Jefferson,  which  the  writer  has  introduced,  as  an  authority, 
to  support  his  doctrine  of  state  rights.  Nor  ought  we  to 
omit  the  manner  in  which  they  are  introduced.  After  hav- 
ing professed  his  strong  attachment  to  the  union  of  the  states, 
he  says,  "  With  these  strong  feelings  of  attachment,  I  have 
examined  with  the  utmost  care,  the  bearing  of  the  doctrine 
in  question,  and  so  far  from  anarchical  or  revolutionary,  I 
solemnly  believe  it  to  be  the  only  solid  foundation  of  our 


320  APPENDIX. 

system,  and  of  the  union  itself ;  and  that  the  opposite  doc- 
trine, which  denies  to  the  states  the  right  of  protecting  then- 
reserved  powers,  and  which  would  vest  in  the  general  gov- 
ernment (it  matters  not  through  what  department)  the  right 
of  determining  exclusively  and  finally,  the  powers  delegated 
to  it,  is  incompatible  with  the  sovereignty  of  the  states  and 
with  the  constitution  itself,  considered  as  a  basis  of  federal 
union."  As  strong  as  this  language  is,  it  is  not  stronger  than 
that  used  by  the  illustrious  Jefferson,  who  said  —  "  To  give 
the  general  government  the  final  and  exclusive  right  to  judge 
of  its  powers,  is  to  make  its  discretion,  and  not  the  consti- 
tution, the  measure  of  its  powers,"  and  that  "  in  all  cases  of 
compact  between  parties  having  no  common  judge,  each 
party  has  an  equal  right  to  judge  for  itself,  as  well  of  the 
operation  as  of  the  mode  and  measure  of  redress."  "  Lan- 
guage," says  Mr.  Calhoun,  "  cannot  be  more  explicit,  nor 
can  higher  authority  be  produced." 

Here  Mr.  Jefferson  as  well  as  Mr.  Calhoun  must  have 
assumed  as  a  first  principle,  that  each  state  still  retains  an  in- 
dependent sovereignty.  It  is  also  conceded  that  the  govern- 
ment of  the  United  States,  within  the  limits  of  its  powers, 
is  possessed  of  independent  sovereignty.  This  being  all 
granted,  the  rest  follows  of  course  —  for  between  independ- 
ent sovereignties  there  can  be  no  common  judge.  But  from 
an  examination  of  the  constitution  of  the  United  States,  we 
have  seen  that  no  such  independent  sovereignty  could  have 
been  left  to  the  states,  consistent  with  the  powers  therein 
delegated  to  the  general  government,  and  the  prohibition  of 
powers  to  the  state  governments,  and  the  declared  supre- 
macy of  that  constitution,  and  the  laws  made  in  pursuance 


APPENDIX.  321 

of  its  powers.  Such  was  the  idea  of  those  who  framed,  and 
those  who  adopted  and  ratified  that  constitution.  On  this 
principle,  was  introduced  into  the  constitution,  the  article 
making  provision  for  a  judicial  power  —  a  tribunal  to  be  a 
common  judge  between  all  the  parties  to  the  constitution,  or 
that  might  become  parties  under  its  administration,  and  ex- 
tending its  jurisdiction  to  all  cases  in  law  and  equity,  arising 
under  the  constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made  under  its  authority. 
And,  as  if  intended  to  put  the  very  case  under  consideration, 
beyond  all  doubt,  the  jurisdiction  of  this  tribunal  is  expressly 
extended  to  controversies,  to  which  the  United  States  shall 
be  a  party  to  controversies  between  two  or  more  states  — 
between  a  state  and  the  citizens  of  another  state,  between 
citizens  of  different  states,  between  citizens  of  the  same  state 
claiming  land  under  grants  of  different  states,  and  between  a 
state  and  citizens  thereof,  and  foreign  states,  citizens  or 
subjects.  And  is  there  any  exception  to  this  jurisdiction, 
except  what  is  to  be  found  in  an  amendment  to  the  consti- 
tution, which  is  in  these  words:  —  "The  judicial  power  of 
the  United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States  by  citizens  of  another  state,  or  by  citi- 
zens or  subjects  of  any  foreign  state." 

From  a  careful  and  attentive  perusal  of  this,  and  other 
provisions  of  the  constitution,  it  appears  to  me  so  demon- 
strably clear,  that  I  can  conceive  no  possible  way  of  avoid- 
ing the  conclusion,  but  by  maintaining  not  only  that  each 
state  in  the  very  face  of  the  constitution,  still  retains  its  inde- 
pendent sovereignty,  but  that  this  sovereignty  is  of  so  high 


o22  APPENDIX. 

and  transcendent  a  nature,  as  to  defy  the  power  of  the  peo- 
ple of  each  state,  and  of  all  the  stales  united,  and  to  render 
inoperative  and  void  every  act  of  the  people,  the  primitive 
sovereignty,  in  any  way  lending  to  its  diminution,  a  position 
which  I  believe  would  not  have  been  assumed  by  Mr.  Jef- 
ferson or  Mr.  Calhoun. 

Another  authority  is  produced  from  the  legislature  of  Vir- 
ginia, —  it  is  an  extract  from  the  report  of  a  committee,  al  a 
session  subsequent  to  that  in  which  the  resolutions,  so  often 
referred  to,  was  passed,  explaining  and  justifying  that  reso- 
lution, and  of  which  Mr.  Calhoun  says,  "  "Were  it  possible  to 
settle  a  question  where  the  passions  and  interests  of  men  are 
concerned,  this  point  would  have  been  long  since  settled 
forever  by  the  state  of  Virginia.  The  report  of  her  legisla- 
ture, to  which  I  have  already  referred,  has  really,  in  my 
opinion,  placed  it  beyond  controversy.  Speaking  in  refer- 
ence to  this  subject,  it  says,  'It  has  been  objected,'  (to  the 
right  of  a  state  to  interpose  for  the  protection  of  her  reserved 
rights,)  '  that  the  judicial  authority  is  to  be  regarded  as  the 
sole  expositor  of  the  constitution  ;  on  this  objection  it  might 
be  observed,  1st.  That  there  may  be  instances  of  reserved 
powers,  which  the  forms  of  the  constitution  could  never 
draw  within  the  control  of  the  judicial  department.  2d. 
That  if  the  decision  of  the  judiciary  be  raised  above  I  In- 
sovereign  parties  to  the  constitution,  the  decisions  of  the 
other  departments,  not  carried  by  the  forms  of  llie  constitu- 
tion before  the  judiciary  department,  must  be  equally  autho- 
ritative and  final  with  the  decisions  of  that  department.  But 
the  proper  answer  to  this  objection  is,  that  the  resolution  of 
the  general  assembly  relates  to  these  great  and  extraordinary 


APPENDIX.  323 

cases,  in  which  all  the  forms  of  the  constitution  may  prove 
ineffectual  against  infractions,  dangerous  to  the  essential 
rights  of  the  parties  to  it.  The  resolution  supposes  that  dan- 
gerous powers  not  delegated,  may  not  only  be  usurped  and 
executed  by  the  other  departments,  but  that  the  judicial  de- 
partment may  also  exercise  or  sanction  dangerous  powers, 
beyond  the  grant  of  the  constitution  ;  and  consequently,  the 
ultimate  right  of  the  parties  to  the  constitution  to  judge 
whether  the  compact  has  been  dangerously  violated,  must 
extend  to  violations,  by  one  delegated  authority,  as  well  as 
another,  by  the  judiciary,  as  well  as  by  the  executive  or 
legislative." 

The  high  opinion  expressed  by  Mr.  Calhoun  of  the  reason 
contained  in  this  report,  as  well  as  the  high  authority  from 
which  it  comes,  entitle  it  to  a  serious  and  candid  examina- 
tion. We  will  therefore  consider  the  reasons  offered,  both 
separately  and  in  connection,  so  far  as  they^tand  connected. 
The  whole  is  intended  to  be  an  answer  to  the  objection  to 
the  state  right  which  we  have  been  discussing,  "  That  the 
judicial  authority  is  to  be  regarded  as  the  sole  expositor  of 
the  constitution."  "  To  this  (say  they)  it  might  be  observ- 
ed, first,  that  there  may  be  instances  of  usurped  powers, 
which  the  forms  of  the  constitution  could  never  draw  within 
the  control  of  the  judicial  department." 

In  every  part  of  this  report  there  is  a  confusion  of  ideas  ; 
the  want,  not  of  a  subtle  and  metaphysical,  but  an  obvious 
and  practical  distinction  —  a  distinction  between  the  uncon- 
stitutionality and  inexpediency  or  impolicy  of  an  act  or 
measure  of  the  government.  In  the  first  case,  the  unconsti- 
tutionality of  an  act,  or,  as  it  is  denominated  in  the  report, 


324  APPENDIX. 

the  usurpation  of  a  power  not  granted  ;  the  constitution  itself 
furnishes  the  rule  of  decision.  Nor  can  there  be  found  a 
single  instance  of  the  kind,  in  which,  by  the  forms  of  the 
constitution,  it  cannot  be  brought  within  the  control  of  the 
judicial  department.  Not  a  case  in  which  the  party  injured 
may  not  bring  to  a  legal  decision  the  question,  whether  the 
act  complained  of  be  an  usurpation  of  a  power  not  granted, 
or  the  exercise  of  a  power  granted  by  the  constitution.  But 
as  to  the  expediency  or  inexpediency,  policy  or  impolicy,  of 
an  act  or  measure  of  the  government,  in  the  exercise  of  a 
constitutional  power,  the  constitution  affords  no  rule  of  deci- 
sion to  a  court  of  law,  nor  can  it  be  made  to  afford  any  rule 
in  such  cases  generally.  The  constitution  has,  therefore, 
necessarily,  and  I  may  add,  Avisely  left  questions  of  mere 
expediency  and  policy  to  the  discretion  of  the  legislative  or 
executive  department,  to  which  the  power  is  committed  in 
trust.  But  the  constitution  has  not  left  this  discretion  uncon- 
trolled. It  is,  by  the  provisions  of  the  constitution,  placed 
under  the  control  of  public  sentiment,  which  is  exercised  by 
the  people  and  the  state  legislatures,  in  their  elections  of  the 
president,  vice-president,  and  the  members  of  the  national 
legislature,  both  of  the  senate  and  house  of  representatives. 
The  frequency  of  elections,  renders  this  control  constant  and 
powerful,  and  of  which  those,  who  are  subject  to  it,  can 
never  be  unmindful.  If  the  distinction  taken  above  be  cor- 
rect, of  which  "  really  in  my  opinion  "  it  is  impossible  to 
doubt,  the  reason  intended  to  be  given  in  the  first  observa- 
tion, being  founded  iii  false  premises,  is  altogether  nugatory. 
They  proceed  to  observe,  "  secondly,  that  if  the  decisions  of 
the  judiciary  be  raised  above  the  sovereign  parties  to  the 


APPENDIX.  325 

constitution,  the  decisions  of  the  other  departments,  not  car- 
ried, by  the  forms  of  the  constitution,  before  the  judiciary, 
must  be  equally  authoritative  and  final,  with  the  decisions  of 
that  department." 

The  same  distinction  which  was  taken  above,  is  equally 
applicable,  and  equally  available  here.  The  decisions  of  the 
judiciary  are  made  final  and  conclusive  on  the  parties,  in  all 
cases  submitted  to  their  j  urisdiction,  and  includes  all  in  which 

the  constitutionality  of  the  acts  and  measures  of  the  other 
departments  may  be  brought  in  question.     But,  as  before 

observed,  the  expediency  and  policy  of  their  acts  is  referred 
to  the  tribunal  of  public  sentiment.  I  can,  therefore  per- 
ceive no  more  force  in  the  reason  of  this  observation,  than 
in  that  of  the  first  —  both  appear  to  me  equally  nugatory. 
The  report  then  proceeds:  —  "But  the  proper  answer  to 
the  objection  is,"  (see  the  last  paragraph  of  the  report  above 
recited.)  This  is  certainly  an  extreme  case  which  proves 
nothing ;  still  more,  it  is  a  case  that  can  never  happen  under 
our  constitution ;  but,  were  it  possible  it  should  happen,  a 
remedy  would  not  be  sought  or  obtained,  by  any  right  re- 
served to  the  states  by  the  constitution.  No  constitution  of 
government  among  men  ever  has  provided,  or  ever  can  pro- 
vide for  a  lawful  resistance  to  its  authority,  without  insuring 
a  perpetual  suspension  or  annihilation  of  its  necessary  ener- 
gies, and  a  universal  anarchy.  But,  it  will  be  asked,  can 
no  lawful  resistance  be,  in  any  case,  made  to  the  unconstitu- 
tional, to  the  tyrannical  and  oppressive  acts  of  a  govern- 
ment ?  As  it  relates  to  civil  institutions  there  cannot,  any 
farther  than  may  be  done  by  a  resort  to  the  constituted  tri- 
bunals, among  which  is  included  that  of  public  sentiment,  a 
41 


326  APPENDIX. 

tribunal  •which,  under  free  institutions,  is  not  the  least  effi- 
cacious. But  in  cases  of  violent  oppression,  where  all  con- 
stitutional remedies  have  been  tried,  and  have  become  hope- 
less, a  people  or  community,  in  that  situation,  are  discharged 
and  freed  from  all  the  duties  of  the  constitution,  the  civil 
compact  of  the  government,  however  solemnly  it  may  have 
been  ratified,  and  are  thrown  back  upon  the  law  of  nature, 
the  law  of  self-protection  ;  that  law  which  authorizes,  nay, 
enjoins,  as  a  duty,  resistance  to  oppression,  by  force  and  by 
every  attainable  means,  under  the  guidance  of  wisdom  and 
prudence.  If,  in  such  case  of  oppression,  any  one  or  more 
of  the  states,  or  any  portion  of  the  people  are  roused  to  re- 
sistance, so  far  are  they  from  acting  under  a  constitutional 
right  granted  or  reserved,  that  they  have  assumed  the  exer- 
cise of  their  natural  rights,  in  defiance  of  the  constitution. 
On  a  candid  review  of  this  subject,  let  me  ask,  what  has 
become  of  those  irresistible  reasons  which,  in  the  opinion  of 
Mr.  Calhoun,  have  settled  the  question  and  placed  it  beyond 
controversy  ?  Gone  —  vanished  into  thin  air.  That  this  is 
not  perceived  and  acknowledged,  is  principally  to  be  attri- 
buted to  passion  and  interest.  But  the  delusion  one  mny 
well  believe,  could  not  have  been  so  long  and  so  obstinately 
persisted  in,  had  it  not  been  supported  by  that  confusion  of 
ideas  already  mentioned,  and  which  is  so  prominent  a  fea- 
ture in  all  Mr.  Jefferson's  theories  of  our  government  ;  and 
indeed  of  all  the  zealous  defenders  of  the  independent  sove- 
reignty of  the  several  states,  and  their  consequent  state 
rights,  —  and  is  not  less  conspicuous  in  the  speculations  of 
Mr.  Calhoun.  It  seems  to  have  lain  like  an  incubus  on  bis 
mind,  benumbing  his  faculties  of  discernment,  and  bewilder- 
ing his  imagination  in  whatever  relates  to  this  subject. 


APPENDIX.  327 

I  ought  not  here  to  omit  another  precedent  taken  from 
the  same  authority  —  the  legislature  of  Virginia,  at  a  sub- 
sequent period,  when  the  fumes  of  party  excitement  had 
passed  away  and  left  the  mind  open  to  the  light  of  truth, 
and  the  convictions  of  reason.  It  is  a  precedent  which,  in 
my  opinion,  neutralizes,  as  far  as  relates  to  the  great  consti- 
tutional question  under  discussion,  all  the  former  precedents 
that  have  been  produced,  and  dissipates  all  those  weighty 
reasons  which,  in  the  opinion  of  Mr.  Calhoun,  has  settled 
the  point  forever,  and  placed  it  beyond  controversy.  It  is 
contained  in  the  following  extract  from  Governor  Tyler's 
message  to  the  legislature,  and  the  proceedings  of  the  two 
houses  thereupon. 

From  Governor  Tyler's  Message. 

December  4,  1809.  —  "A  proposition  from  the  state  of 
Pennsylvania  is  herewith  submitted  with  Governor  Snyder's 
letter  accompanying  the  same,  in  which  is  suggested  the 
propriety  of  amending  the  constitution  of  the  United  States, 
so  as  to  prevent  collision  between  the  government  of  the 
United  States  and  the  state  governments. 

House  of  Delegates,  Friday,  December  15,  1809.  —  "  On 
motion  ordered  that  so  much  of  the  governor's  communica- 
tion as  relates  to  the  communication  from  the  governor  of 
Pennsylvania  on  the  subject  of  an  amendment  proposed  by 
the  legislature  of  that  state,  to  the  constitution  of  the  United 
States,  be  referred  to  Messrs.  Peyton,  Otey,  &c. 

Thursday,  January  16,  1810.  —  Mr.  Peyton,  from  the 
committee  to  whom  was  referred  that  part  of  the  governor's 
communication,  which  relates  to  the  amendment  proposed 


328  APPENDIX. 

by  the  state  of  Pennsylvania,  to  the  constitution  of  the 
United  States,  made  the  following  report :  —  The  committer, 
to  whom  was  referred  the  communication  of  the  governor  of 
Pennsylvania,  covering  certain  resolutions  of  the  legislature 
of  that  state,  proposing  an  amendment  to  the  constitution  of 
the  United  States,  by  the  appointment  of  an  impartial  tribu- 
nal, to  decide  disputes  between  the  states  and  the  federal 
government,  have  had  the  same  under  their  consideration, 
and  are  of  opinion,  that  a  tribunal  is  already  provided  by 
the  constitution  of  the  United  States,  to  wit.,  the  supreme 
court,  more  eminently  qualified  from  their  habits  and  duties, 
from  the  mode  of  their  selection,  and  from  the  tenure  of 
their  office,  to  decide  the  disputes  aforesaid,  in  an  enlight- 
ened and  impartial  manner,  than  any  other  tribunal  which 
could  be  created. 

The  members  of  the  supreme  court  are  selected  from 
those  in  the  United  States,  who  are  most  eminent  for  virtue 
and  legal  learning,  not  at  the  will  of  a  single  individual,  but 
by  the  concurrent  wishes  of  the  president  and  senate  of  the 
United  States.  They  will,  therefore,  have  no  local  preju- 
dices and  partialities,  the  duties  they  have  to  perform  Lead 
them  necessarily  to  the  most  enlarged  and  accurate  ac- 
quaintance witli  the  jurisdiction  of  the  federal  and  state 
courts  together,  and  with  the  admired  symmetry  of  our  gov- 
ernment. The  tenure  of  their  office  enables  them  to  pro- 
nounce the  correct  opinions  they  may  have  formed,  without 
fear,  favor  or  impartiality.  Tin-  amendment  to  the  consti- 
tution, propose'd  by  Pennsylvania, seems  i<>  lie  founded  upon 
the  idea,  that  the  federal  court  will,  from  a  lust  of  power, 
enlarge    their    jurisdiction   to   the   total   annihilation   of   the 


APPENDIX.  329 

power  and  jurisdiction  of  the  state  courts  ;  that  they  "will 
exercise  their  will  instead  of  the  law  and  constitution.  This 
argument,  if  it  proves  anything,  avouM  operate  more  strongly 
against  the  tribunal  proposed  to  be  erected,  which  promises 
so  little,  than  against  the  supreme  court,  which  for  the  rea- 
sons given  before,  have  everything  connected  with  their 
appointment  calculated  to  insure  confidence.  What  secu- 
rity have  we,  were  the  proposed  amendment  adopted,  that 
this  tribunal  would  not  substitute  their  will  and  their  pleas- 
ure in  place  of  the  law  ?  The  judiciary  are  the  weakest  of 
the  three  departments  of  government,  and  least  dangerous 
to  the  political  rights  of  the  constitution ;  they  held  neither 
the  purse  nor  the  sword,  and  even  to  enforce  their  own 
judgments  and  decisions,  must  ultimately  depend  on  the 
executive  arm.  Should  the  federal  judiciary,  however,  un- 
mindful of  their  weakness,  unmindful  of  their  duty,  which 
they  owe  to  themselves  and  their  country,  become  corrupt, 
and  transcend  the  limits  of  their  jurisdiction,  would  the  pro- 
posed amendment  oppose  even  a  probable  barrier  to  such 
an  improbable  state  of  things.  The  creation  of  a  tribunal, 
such  as  is  proposed  by  Pennsylvania,  so  far  as  we  can  form 
an  idea  of  it,  from  the  description  given  in  the  resolutions 
of  the  legislature  of  that  state,  would,  in  the  opinion  of  your 
committee,  tend  rather  to  invite  than  to  prevent  collisions 
between  the  federal  and  state  courts.  It  might  also  become, 
in  process  of  time,  a  serious  and  dangerous  embarrassment 
to  the  operations  of  the  general  government.  Resolved, 
therefore,  that  the  legislature  of  this  state  do  disapprove  of 
the  amendment  to  the  constitution  of  the  United  States,  pro- 
posed by  the  legislature  of  Pennsylvania.     Resolved,  also, 


330  APPENDIX. 

that  his  excellency  the  governor,  be,  and  he  is  hereby  re- 
quested  to  transmit  forthwith,  copies  of  the  foregoing  pre- 
amble and  resolutions  to  each  of  the  senators  and  repre- 
sentatives of  this  state  in  congress,  and  to  the  executives  of 
the  several  states  in  the  union,  with  a  request  that  the  Bane 
be  laid  before  the  legislatures  thereof."  The  reports,  with 
the  resolutions,  having  passed  through  the  usual  forms,  were 
agreed  to  unanimously,  both  by  the  house  of  delegates  and 
by  the  senate.  Any  comment  on  this  precedent  is  unneces- 
sary ;  it  speaks  for  itself,  in  a  language  too  intelligible  to  be 
misunderstood  or  perverted. 

The  writer,  however,  still  considers  his  reasons,  and  those 
of  his  authorities  to  be  unanswerable.  He  proceeds  to  say, 
"  Against  these  conclusive  arguments  as  it  appears  to  me,  it 
is  objected,  that  if  one  party  has  a  right  to  judge  of  infrac- 
tions, so  has  the  other,  and  that,  consequently,  in  a  case  of 
contested  powers,  between  a  state  and  the  general  govern- 
ment, each  would  have  a  right  to  maintain  its  opinion,  as  in 
the  case  when  sovereign  powers  differ  in  the  construction  of 
treaties,  or  compacts  ;  and  that,  of  course,  it  would  come  to 
be  a  mere  question  of  force.  The  error  is  in  the  assumption 
that  the  federal  government  is  a  party  of  the  national  com- 
pact." This  is  an  assumption,  which,  I  believe,  has  never 
been  made  ;  nor  can  I  suppose  any  could  ev(ir  conclude  that 
any  government  ever  was,  or  ever  could  be,  a  party,  in  any 
sense  of  the  word,  to  the  compact,  by  which  it  was  created, 
and  brought  into  existence.  Indeed,  when  the  compact  is 
completed,  the  government  still  exists  in  idea  only;  it  is  a 
mere  abstract  entity,  until  arranged,  and  then,  though  inca- 
pable of  becoming  by  retrospect,  ;<  party  in  its  own  produc- 


APPENDIX.  331 

tion,  yet  is  it  now  capable  of  acting  and  of  being  a  party,  in 
cases  which  may  arise  between  itself  and  any  of  its  constitu- 
ents, or  others,  according  to  the  nature  and  extent  of  the 
original  compact.  But  he  says,  "  The  states,  as  has  been 
showed,  formed  the  compact,  acting  as  sovereign  and  inde- 
pendent communities."  Answer  —  It  has  been  shown,  and 
so  is  the  fact,  that  the  government  of  the  several  states,  in 
the  character  of  independent  sovereigns,  submitted  each  to 
the  sovereign  people  of  the  state,  as  the  only  competent  aur- 
thority,  and  from  whom  they  severally  derived  and  held  the 
sovereign  power  in  trust,  the  execution  and  ratification  of  the 
federal  compact,  the  constitution  of  the  United  States.  It  is 
the  act,  and  in  fact  the  sole,  though  concurrent  act,  of  the 
people  of  each  state.  And  by  the  same  act,  by  which  they 
declared  the  constitution  and  laws  of  the  United  States,  and 
treaties  made  under  its  authority,  to  be  the  supreme  law  of 
the  land  —  that  the  judges  in  the  several  states  should  be 
bound  thereby,  anything  in  the  constitution  of  any  state  to 
the  contrary  notwithstanding  ;  and  that  the  members  of  the 
several  state  legislatures,  and  all  executive  and  judicial  offi- 
cers shall  be  bound  by  oath  or  affirmation  to  support  that 
constitution,  they  reduced,  as  they  had  competent  authority 
to  do,  the  independent  sovereignty,  which  each  state  had 
before  possessed,  to  a  limited  sovereignty,  intended  to  har- 
monize with  that  superior,  though,  in  many  respects,  limited 
sovereignty,  which  that  act  conferred  on  the  general  govern- 
ment. Of  all  this,  not  a  fact  can  be  denied,  nor  the  conclu- 
sion from  those  facts,  as  it  appears  to  me,  without  at  the  same 
time,  denying  all  existence  of  principles,  and  force  of  reason. 
It  is  however  immaterial  in  what  character  the  several  states 


332  APPExNDIX. 

acted  on  that  occasion.  The  question  is,  in  what  character 
they  now  stand ;  whal  character  was  fixed  upon  them  by  the 
sovereign  people,  which,  and  no  other,  they  still  continue  to 
sustain.  What  that  character  is,  we  have  seen  clearly  de- 
monstrated ;  yet  he  goes  on  to  say,  "  The  general  govern- 
ment is  its  creature,  (of  the  compact,)  and  though  in  reality 
a  government,  with  all  the  rights  and  authority  which  belong 
to  any  other  government,  within  the  orb  of  its  power,  is  nev- 
ertheless a  government,  emanating  from  a  compact  between 
sovereigns,  and  partaking  in  its  nature  and  object,  of  a  joint 
commission,  appointed  to  superintend  and  administer  the  in- 
terests in  which  all  are  jointly  concerned,  but  having,  beyond 
its  proper  sphere,  no  more  power  than  if  it  did  not  exist." 
There  is  indeed  a  certain  degree  of  analogy  between  the  case 
he  puts,  of  a  joint  commission,  and  that  of  the  general  gov- 
ernment. The  commissioner,  or  agent,  we  may  call  him,  is 
appointed  to  manage  the  joint  concerns  of  the  principals,  and 
has  no  authority  to  bind  them  beyond  Ihe  powers  they  have 
given.  The  general  government  is  constituted  with  certain 
powers,  to  be  exercised  within  certain  limits  ;  if  the  govern- 
ment exceed  those  powers,  or,  rather,  if  it  docs  not  adhere 
to,  and  pursue  those  powers  agreeably  to  the  true  construc- 
tion of  the  constitution,  its  acts  are  void  ;  they  are  not  bind- 
ing on  the  principals,  whether  we  consider  the  people,  the 
states,  or  both  to  be  principals.  Here  the  analogy  ends. 
Contests  may  sometimes  arise  between  the  commissioner  or 
agent,  and  his  principals,  whether  he  has  exceeded  his 
powers,  but  more  frequently  between  third  parties  and  ihe 
principals.  In  neither  of  these  cases,  however,  have  the 
principals  :i  righl  to  decide  for  themselves  in  the  lasi  resort. 


APPENDIX. 

The  parties  may  compromise,  but  the  compromise  must  be 
mutual.  If  they  still  persist,  the  final  resort  must  be  to  a 
court  of  law  —  a  court,  not  established  by  the  compact,  but 
by  the  laws  of  the  country.  Very  different  is  the  case  of  the 
general  government.  In  that  solemn  compact,  the  constitu- 
tion of  the  United  States,  as  has  been  already  pointed  out, 
there  is  established  a  judicial  power,  which  expressly  em- 
braces in  its  jurisdiction,  all  cases  that  can  arise  between  the 
general  government  and  any  and  all  the  parties  to  the  com- 
pact, relating  to  the  constitutional  exercise  of  its  powers,  and 
the  binding  force  of  its  acts  ;  with  the  provision  of  an  execu- 
tive power  to  carry  the  decisions  of  the  judiciary  into  final 
effect.  Without  this  provision  of  an  adequate  judiciary  and 
executive  power,  it  would  have  been  nothing  more,  perhaps 
something  less,  than  a  joint  commission.  With  it,  it  is  a 
government  with  all  the  attributes  of  sovereignty,  within  the 
limits  of  its  powers.  It  must,  therefore,  be  seen  at  once,  that 
the  analogy  sought  fails  in  all  the  essential  points  ;  that  the 
argument  built  upon  it  is  deceptive,  and  the  conclusions 
wholly  fallacious.  Had  the  writer  taken  his  analogy  from 
any  of  the  state  governments,  it  would  have  extended  much 
further,  and,  indeed,  to  every  essential  point ;  but  the  con- 
clusion would  have  been  wholly  the  reverse. 

In  the  next  paragraph  he  again  endeavors  to  support  him- 
self by  authority,  "  That  this  doctrine  is  applicable  to  the 
case  of  a  contested  power  between  the  states  and  general 
government,  we  have  the  authority,  not  only  of  reason  and 
analogy,  but  of  the  distinguished  statesman  already  referred 
to.  Mr.  Jefferson,  at  a  late  period  of  his  life,  after  long  ex- 
perience and  mature  deliberation,  says,  "  With  respect  to 
42 


334  APPENDIX. 

our  state  and  federal  governments,  I  do  not  think  their  rela- 
tions are  well  understood  by  foreigners.  They  suppose  the 
former  subordinate  to  the  latter ;  this  is  not  the  case  ;  they 
are  coordinate  departments  of  one  single  and  integral  whole. 
But  you  may  ask,  if  the  two  departments  should  claim  the 
same  subject  of  power,  where  is  the  umpire  to  decide  be- 
tween them.  In  cases  of  little  urgency,  or  importance,  the 
prudence  of  both  parties  will  keep  them  aloof  from  the  ques- 
tionable ground  ;  but  if  it  can  neither  be  avoided  nor  com- 
promised, a  convention  of  the  states  must  be  called  to  ascribe 
the  doubtful  power  to  that  department  which  they  may  think 
best."  It  is  certainly  not  surprising  that  foreigners  should 
not  well  understand  the  relation  existing  between  our  state 
and  federal  governments  ;  but  it  is  not  a  little  surprising  that 
so  distinguished  a  statesman  as  Mr.  Jefferson,  after  long  ex- 
perience and  mature  deliberation,  should  not  have  under- 
stood them,  or  understanding,  should  not,  when  he  sat  down 
to  correct  the  erroneous  opinions  of  others,  have  been  able 
to  express  his  own  in  clear  and  intelligible  language.  It  is 
true,  there  is  some  degree  of  difficulty  in  defining  those  rela- 
tions, which  never  before  existed  in  the  government  of  any 
nation.  No  words,  no  names  had,  therefore,  been  appro- 
priated to  express  those  relations  —  none  are  to  be  found  in 
any  political  writer,  or  in  any  treatise  on  government  now 

extant.     Words  and  names  may  be  found,  having   a j 

analogous  signification ;  but  the  analogy  will  always  be  dis- 
covered to  be  more  or  less  remote:  so  that  unless  a  writer 
on  the  subjeel  is  very  careful  to  define  the  precise  meaning 
he  intends  to  express  by  them,  he  will  often  involve  his 
meaning   in    obscurity,  or  lead  others,  if  not  himself,  into 


APPENDIX.  335 

erroneous  conclusions  ;  and  such  is  evidently  the  case  with 
Mr.  Jefferson  in  this  instance.  He  tells  us  the  relation  be- 
tween the  state  and  federal  governments,  is  that  of  coordi- 
nate departments  of  one  integral  whole  —  of  one  whole  and 
complete  government.  As  no  qualifying  or  defining  epithet 
is  here  introduced,  the  expression  ought  to  be  understood  in 
its  common  or  appropriate  signification,  which  indeed  are 
here  the  same.  When  we  speak  of  coordinate  powers  gen- 
erally, it  is  understood  that  the  cooperation  of  the  powers, 
two  or  more,  are  necessary  to  produce  a  given  effect.  In 
perfect  analogy  to  this,  the  word  coordinate  is  applied  to 
departments  of  government.  If  the  cooperation  of  all  the 
departments,  acting  separately,  be  necessary  to  the  validity 
of  their  acts,  then  powers  are  said  to  be  coordinate,  and 
they  are  appropriately  denominated  coordinate  departments. 
So  fixed  is  the  meaning  of  the  expression,  that  this  departure 
of  Mr.  Jefferson,  if  a  different  meaning  was  intended,  is,  I 
believe,  the  first  to  be  found  in  the  English  language. 

Of  these  coordinate  departments  we  have  examples,  as 
well  in  our  own  governments,  as  in  that  of  Great  Britain. 
Both  in  our  general  and  state  governments,  the  legislative 
branch  is  divided  into  two  departments  at  least,  consisting 
of  a  senate  and  a  house  of  representatives,  who  deliberate 
and  act  separately,  but  must  both  concur  in  the  same  act  to 
give  it  validity.  The  British  parliament,  the  legislative 
branch  of  that  government,  is  divided  into  three  depart- 
ments, or,  as  they  are  often  denominated,  the  three  estates 
of  the  realm,  with  coordinate  powers.  The  king  constitutes 
one  department,  the  house  of  lords  another,  and  the  house 
of  commons  a  third ;    and,  to  the  validity  of  all  and  every 


336  APPENDIX. 

legislative  act,  each  of  these  coordinate  departments  must 
concur. 

Certainly  nothing  can  be  found  in  any  article,  section,  or 
expression  of  the  constitution,  to  justify  the  application  of 
the  term  coordinate  departments  to  the  relations  thereby 
established  between  the  state  and  general  governments,  in 
its  appropriate  sense.  Nor  can  it  be  made  to  consist  with 
the  declaration,  that  the  constitution  and  laws  of  the  United 
States  shall  be  the  supreme  law  of  the  land.  The  state 
governments,  as  such,  are  not  by  the  constitution  admitted 
to  any  voice,  either  positive  or  negative,  in  the  adoption  of 
those  laws,  or  authorized  finally  to  decide  on  their  validity, 
either  by  themselves,  or  by  their  highest  legal  tribunals.  I 
think  Mr.  Jefferson  could  not  be  supposed,  in  this  instance, 
to  have  used  the  term  in  its  appropriate  sense.  The  origi- 
nal meaning  of  the  epithet  coordinate,  taken  singly,  is,  of 
equal,  or  the  same  order,  rank,  or  degree  ;  as  two  counts, 
an  order  of  nobility,  are  said  to  be  of  coordinate  rank,  with- 
out reference  to  power  or  cooperation.  But,  taken  in  this 
sense,  of  an  equality  of  rank,  to  any  practical  purpose,  be- 
tween the  governments,  it  appears  to  me  to  be  irreconcil- 
able with  the  decided  supremacy  of  the  constitution  and 
laws  of  the  general  government.  It  does  not  support  the 
general  conclusion,  which  seems  intended  to  be  drawn  ;  nor 
does  the  instance  put,  serve  to  illustrate  his  position,  nor  to 
support  Mr.  Calhoun's  doctrine  of  state  rights.  Mr.  Jeffer- 
son gives  an  instance  of  what,  he  would  have  us  believe,  is 
an  exercise  of  coordinate  powers;  or,  perhaps  we  should 
rather  say,  of  the  remedy  to  be  obtained,  through  the  means, 
or  in   consequence  of,  the    relation   subsisting  between  the 


APPENDIX.  337 

state  and  general  government,  which  he  believes  to  be  cor- 
rectly expresssed  by  calling  them  coordinate  departments  of 
one  integral  government.  In  this  instance,  I  think  he  has 
been  altogether  unfortunate.  He  raises  an  objection  by 
way  of  question :  "  But  you  will  ask  if  the  two  departments 
should  claim  the  same  subject  of  power,  where  is  the  umpire 
to  decide  ? "  His  answer  is  clearly  intended  to  illustrate  his 
proposition,  by  obviating  the  objection:  "In  cases  of  little 
urgency  or  importance,  the  prudence  of  both  parties  will 
keep  them  aloof  from  the  debatable  ground  ;  but  if  it  can 
neither  be  avoided  nor  compromised,  a  convention  of  the 
states  must  be  called,  to  ascribe  the  doubtful  power  to  that 
department  it  shall  think  best."  What  is  here  understood 
by  the  subject  of  power  ?  Is  it  person,  or  property,  or  any 
matter  or  thing  on  which  the  power  may  be  exercised  ?  or 
is  it  the  purpose  or  object  to  be  attained,  or  both  ?  Taken 
in  either  sense,  if  there  may  be  a  possible,  there  is  certainly 
no  necessary  conflict,  arising  from  the  simultaneous  exercise 
of  the  same  power,  by  any  or  all  the  states  and  by  congress. 
Congress  has  the  power  to  lay  and  collect  taxes  through  all 
the  states.  Each  state  has  the  same  power,  within  the  limits 
of  its  jurisdiction.  The  subjects  to  be  assessed  or  taxed, 
are  the  same  with  both.  In  the  case  of  a  direct  tax,  persons 
and  property  ;  of  indirect  taxes,  as  an  excise,  all  excisable 
articles.  The  power  has  been  often  so  exercised  by  both 
without  a  suspicion  of  collision.  Still,  there  may  arise  an 
inconvenience.  These  double  exactions  may,  in  their 
amount,  press  too  hard  on  the  contributors ;  but  public 
sentiment,  under  the  joint  influence  of  national  and  state 
interests,  in   consideration  of  the   exigencies  on  each  side, 


338  APPENDIX. 

and  brought  to  bear  alike  on  both  parties,  will  soon  find  a 
remedy  for  the  inconvenience.  One  or  both  will  soon  be 
induced  to  relax  their  exactions;  or  one  wholly  to  remit, 
and  resort  to  other  sources  of  revenue.  We  may  adduce 
another  case,  in  which  the  power  of  both  governments  may 
be  brought,  and  frequently  have  been  brought,  to  bear  on 
the  same  subject,  and  for  an  object  in  many  respects  the 
same,  in  other  respects  different,  but  perfectly  concordant. 
This  is  the  case  of  internal  improvements  ;  a  power  to  pro- 
mote which  has  been,  and  still  is,  exercised  by  the  general 
government,  as  a  constitutional  power,  and  with  the  appro- 
bation of  a  great  majority  of  the  people,  and  of  the  states. 
As  internal  improvements  in  general,  such  as  canals  and 
railroads,  must,  for  the  most  part,  be  made  within  the  limits 
of  a  state,  the  state  power  must  be  first  brought  to  bear  on 
the  subject,  as  the  state  alone  has  the  power  and  the  right  of 
taking  private  property,  for  public  use,  against  the  will  of 
the  owner,  making  him  a  proper  compensation,  without  the 
exercise  of  which  no  canal  or  railroad,  or  indeed  any  other 
road  could  be  made,  and  carried  through,  if  at  all,  without 
immense  sacrifices.  The  state  legislature  will  make  the  ne- 
cessary provision,  as  they  find  it  for  the  interest  of  the  state, 
and  may  direct  the  road  or  canal  to  be  made  for  the  use 
and  at  the  expense  of  the  state,  or  they  may  grant  them  to 
a  company  or  companies,  incorporated  for  that  purpose, 
always  subject  to  the  laws  and  regulations  of  the  state  alone. 
Congress  may  now,  if  they  view  the  objeel  of  sufficient  na- 
tional importance,  and  to  concern  the  general  welfare,  bring 
their  power  to  bear  on  the  Bubject,  by  advancing  money  to 
(he  state  or  company,  on    loan,  or  by   a   subscription   for 


APPENDIX.  339 

shares  in  the  company  stock.  This  will  be  done,  however, 
only  on  application  to  congress  by  the  state,  or  by  the  com- 
pany. In  the  first  case,  that  of  taxation,  each  party  exer- 
cises its  power,  independent  and  distinct  from  the  other  ;  in 
the  latter  case,  the  state  exercises  its  power,  as  principal, 
the  general  government  as  auxiliary.  The  object  of  the 
state  is  its  own  welfare,  not  excluding  the  general  welfare. 
The  object  of  congress  is  the  general  welfare,  including  that 
of  the  state.  In  none  of  these  cases  do  we  find  the  shadow 
of  a  coordinate  power,  or  any  collision  of  powers.  There 
are,  indeed,  some  acts,  generally  prohibited,  which  a  state 
may  nevertheless  perform,  with  the  consent  of  congress. 
But  this  consent  is  a  permissive  act,  of  which  the  state  may 
avail  itself  or  not.  It  is  not  a  concurrent  act,  as  in  case  of 
coordinate  powers  or  coordinate  departments,  in  the  appro- 
priate sense  of  the  term ;  nor,  in  the  other  sense  of  the  ex- 
pression, does  it  make  anything  in  favor  of  equal  powers. 

We  will  however  suppose  such  conflicting  claim  to  have 
arisen  between  congress  and  the  several  state  governments. 
What  does  Mr.  Jefferson  intend  by  the  expression,  "  if  it 
cannot  be  avoided  or  compromised  ?"  Should  congress  exer- 
cise the  power,  or  one  or  more  of  the  states,  it  becomes  a 
question  of  constitutional  right  —  a  case  arising  under  the 
constitution  and  laws  of  the  United  States,  and  can  be  con- 
stitutionally decided  by  the  constitutional  tribunal,  the  na- 
tional judiciary  only.  It  is  not  a  case  for  a  compromise. 
Congress  cannot  alter  the  constitution,  by  surrendering  or 
abridging  any  of  their  legitimate  powers  ;  nor  can  the  several 
state  governments,  of  their  own  accord,  surrender  any  right 
reserved  to  them  in  that  sacred  instrument,  by  the  sovereign 


340  APPENDIX. 

people.  Although  there  is  but  one  mode,  thai  just  referred 
to,  of  settling  the  present  right  of  the  parties,  yet  is  there 
another  mode  provided  for  settling  its  exercise  for  the  future, 
by  an  amendment  to  the  constitution,  which  may  assign  the 
right  to  one  party  or  the  other,  with  such  modifications  and 
limitations  as  shall  be  deemed  most  conducive  to  the  gene- 
ral welfare,  or  wholly  prohibit  its  exercise.  Such  provision 
is  found  in  the  fifth  article  of  the  constitution,  "  The  con- 
gress, whenever  two-thirds  of  both  houses  shall  deem  it  ne- 
cessary, shall  propose  amendments  to  the  constitution,  or  on 
the  application  of  the  legislatures  of  two-thirds  of  the  several 
states,  shall  call  a  convention  of  the  several  states,  for  pro- 
posing amendments,  which  in  either  case  shall  be  valid  to 
all  intents  and  purposes,  as  part  of  this  constitution,  when 
ratified  by  the  legislatures  of  three-fourths  of  the  several 
states,  or  by  conventions  in  three-fourths  thereof,  as  the  one 
or  the  other  mode  of  ratification  may  be  proposed  by  the 
congress." 

Mr.  Jefferson  had  undoubtedly  a  reference  to  such  con- 
vention, a  convention  to  be  called,  on  the  application  of  the 
Legislatures  of  two-thirds  of  the  several  states;  for  we  cannot 
suppose  that  he  contemplated,  in  this  instance,  any  innova- 
tion of  the  constitution.  Although  this  convention  was  to 
have  the  power  only  of  proposing  amendments,  thereafter  to 
be  referred,  for  ratification,  to  the  states,  in  one  or  other  of 
the  modes  which  congress  mighl  propose.  On  the  whole, 
we  need  not  hesitate  to  say,  that  he  lias  not  given  a  proper, 
or  satisfactory  answer  to  the  objection  he  had  raised,  nor  an 
answer  tending  in  the  leasl  to  strengthen  or  to  illustrate  his 
proposition. 


APPENDIX.  341 

I  shall  presently  attempt  to  explain  the  relation  actually- 
existing  between  the  state  and  general  governments,  and  the 
provisions  of  the  constitution  intended  to  harmonize  the 
general  and  particular  interest.  But,  as  I  have  hitherto, 
after  stating  the  writer's  doctrine  of  state'  rights,  confined 
myself  principally  to  an  examination  of  his  authorities,  on 
which  he  places  so  profound  a  reliance,  and  their  reasons, 
fully  expressing,  as  he  tells  us,  his  own,  and  which  he  has 
considered  as  unanswerable,  I  will  return  to  a  brief  exami- 
nation of  his  own  reasoning,  the  theory  on  which,  according 
to  him,  the  constitution  rests. 

He  begins  with  saying  :  "It  has  been  said  by  one  of  the 
most  sagacious  men  of  antiquity,  that  the  object  of  a  consti- 
tution is  to  restrain  the  government,  as  that  of  the  laws  is  to 
restrain  individuals.  The  remark  is  correct.  Nor  is  it  less 
true,  where  the  government  is  vested  in  a  majority,  than 
where  it  is  in  a  single  or  a  few  individuals,  a  republic  than  a 
monarchy  or  aristocracy.  No  one  can  have  a  higher  respect 
for  the  maxim,  that  the  majority  ought  to  govern,  than  I 
have,  taken  in  its  proper  sense,  subject  to  the  restrictions 
imposed  by  the  constitution,  and  confined  to  subjects  in 
which  every  portion  of  the  community  have  similar  interest ; 
but  it  is  a  great  error  to  suppose,  as  many  do,  that  the  right  of 
a  majority  is  a  natural  and  not  a  conventional  right,  and  there- 
fore absolute  and  unlimited.  By  nature  every  man  has  the 
right  to  govern  himself;  and  government,  whether  founded 
on  majorities  or  minorities,  must  derive  their  right  from  the 
assent,  expressed  or  implied,  of  the  governed,  and  be  subject 
to  such  limitations  ;is  theymay  impose.  Where  the  interests 
are  the  same,  that  is,  where  the  same  laws  that  will  benefit 
43 


342  APPENDIX. 

one  will  benefit  all,  it  is  just  and  proper  to  place  them  under 
the  control  of  the  majority  ;  but  where  they  are  dissimilar, 
so  that  the  law  thai  may  benefit  one  portion  may  be  ruinous 
to  another,  it  would  be  unjust  and  absurd  to  subject  them  to 
its  will ;  and  such  I  conceive  to  be  the  theory  on  which  our 
constitution  rests." 

The  theory  exhibited  in  this  passage,  is,  except  in  one  or 
two  instances,  certainly  correct,  although,  like  most  of  all 
theories,  it  may  be  misapplied,  as  I  think  it  has  been  in  this 
case.  The  exception  is,  to  the  distinction  taken  for  granted 
between  natural  and  conventional  rights,  as  though  the  for- 
mer were  absolute  and  unlimited,  the  latter  not.  There  is  in 
fact,  no  such  thing  among  human  beings  as  an  absolute  and 
unlimited  right,  whether  it  be  called  natural  or  conventional. 
All  rights  are  relative  ;  they  are  suggested  by  existing  social 
relations,  and  are  consummated,  modified,  and  limited  by 
convention  ;  that  is,  by  the  general,  but  for  the  most  part 
tacit  consent  of  the  society.  An  isolated  individual,  ex- 
cluded from  all  possible  relation  to  society,  all  knowledge  of 
social  relations,  could  have  no  right,  nor  even  the  conception 
of  a  right,  in  any  proper  sense  of  the  term.  He  would  have 
the  power  of  uncontrolled  action  within  the  limits  assigned 
by  his  nature,  the  power  of  doing  what  he  pleased.  This 
is  not  the  exercise  of  a  right,  but  of  a  faculty.  The  right  of 
self-governmenl,  which  it  is  said  every  man  has  from  nature, 
is,  therefore,  not  absolute  and  unlimited.  It  is  by  that  very 
assenl  which  is  necessary  to  its  existence,  subjected  to  modi- 
fications and  limitations.  The  actions  of  the  individual  are. 
in  thai  respect,  subject  to  prohibitions  and  even  compulsion* 
It  is  the  right   and   duty  of  the  community,  in  any  existing 


APPENDIX.  343 

state  of  things,  to  prohibit  all  those  actions  of  the  individual 
that  have  a  direct  tendency  to  injure  the  society,  and  to 
compel  him  to  make  those  proportionate  contributions  that 
are  found  necessary  to  support  and  advance  the  general 
interest  —  the  good  of  the  whole.  As  all  rights  are  social, 
so  are  they  also  conventional ;  but  they  are  not  therefore 
opposed  to  natural  rights.  Nothing  more  can  with  pro- 
priety be  meant  by  natural  rights  than  that  they  are  approved 
by  the  laws  of  nature.  Nor  can  anything  more  be  under- 
stood by  the  laws  of  nature,  than  those  rules  of  human  or 
social  conduct,  which  reason  and  experience  have  discovered 
to  be  generally  beneficial  to  man,  in  the  relations  which  he 
sustains  agreeably  to  his  constitution,  as  established  by  his 
Creator.  It  is  not  true  in  any  practical  sense,  that  any  rule 
of  the  law  of  nature  is  absolute  and  unlimited  —  that  it  is 
binding,  under  all  circumstances,  admitting  no  exceptions. 
That  which  the  law  of  nature  approves  and  enjoins  in  cer- 
tain circumstances  and  relations  of  society,  it  disapproves 
and  prohibits  in  others.  Were  it  not  so,  all  social  improve- 
ments must  have  been  prohibited  to  mankind,  by  the  laws  of 
his  nature. 

The  rule,  that  the  majority  shall  govern,  was  considered 
by  those  who  formed  and  by  those  who  ratified  the  consti- 
tution, as  a  rule  already  established.  It  had  the  sanction  of 
immemorial  usage  ;  it  was  the  established  rule  in  every  legis- 
lative, in  every  public  body  through  the  country.  But  they 
considered  it  to  be  capable  of  exceptions  ;  and  they  intro- 
duced exceptions,  in  all  the  cases  where  they  thought  a 
greater  degree  of  unanimity  ought  to  be  required.  Thus  in 
the  senate,  it  is  made  necessary  that  two-thirds  of  the  mem- 


344  APPENDIX. 

bers  present  should  give  their  assent  to  a  treaty  —  and  the 
same  majority  of  two-thirds  is  necessary  to  conviction  on 
impeachment.  It  is  also  provided,  that  a  bill  objected  to  by 
the  president,  shall  not  become  a  law  unless  it  shall  be  re- 
passed by  a  majority  of  two-thirds  of  both  houses.  That 
the  majority  of  two-thirds  of  both  houses  shall  agree  in 
making  proposals  of  amendments  of  the  constitution  by  con- 
gress. In  the  application  to  congress,  it  is  required  thai  two- 
thirds,  and  in  the  ratification  of  amendments  three-fourths 
of  the  states  should  concur.  These  are  the  only  exceptions 
expressed,  and  being  expressed,  every  exception  by  infer- 
ence merely  is  excluded.  The  assertion,  that  where  the 
interests  are  dissimilar,  so  that  the  law  that  will  benefit  one 
portion,  may  be  ruinous  to  another,  it  would  be  unjust  and 
absurd  to  subject  them  to  the  will  of  a  majority,  is  too 
unqualified,  and  moreover  implies  an  extreme  case,  which 
proves  nothing.  In  every  community,  Avhere  the  members 
are  intelligent  and  enterprising,  there  must  necessarily  be 
a  great  diversity  or  dissimilarity  of  interests,  arising  from 
different  pursuits,  but  all  contributing  more  or  less  to  the 
same  end,  and  the  sum  total  of  which  will  constitute  the 
general  interest ;  that  is,  the  interest  of  the  majority.  If 
there  be  found  an  interest  that  contributes  nothing  to  the 
general  interest,  it  can  demand  no  more  than  common  pro- 
tection;  but  if  it  be  detrimental,  if  hostile  i<>  the  general 
interest,  it  would  be  unjust  and  absurd  to  encourage  it;  nay, 
justice  to  the  community  would  require  thai  proper  nieas- 
ures  should  be  adopted  to  discourage  it,  and  put  an  end  to 
its  pursuit.  Indeed,  in  a  well  regulated  society,  very  few, 
I  believe  I  may  venture  to  say  none,  will  be  found  to  engage 


APPENDIX.  345 

in,  or  certainly,  long  to  pursue  an  interest  that  in  its  nature, 
or  the  nature  of  the  means  necessary  to  support  it,  is  so 
inflexible  that  it  cannot  be  brought  to  accord  with  the  public 
interest,  and  even  to  promote  it. 

The  writer  having,  as  he  assumes,  established  by  the  au- 
thorities adduced,  as  well  as  by  his  own  reasoning,  the  right 
of  a  state,  by  its  legislature,  to  nullify  or  suspend  Avithin  the 
limits  of  its  jurisdiction,  any  law  of  the  general  govern- 
ment, which  they  shall  judge  to  be  unconstitutional,  or 
what  he  considers  the  same  thing,  to  come  in  conflict  with 
some  great  interest  of  the  state,  proceeds  to  give  us  the  rea- 
son why  such  provision  should  be  made  in  a  government 
like  ours,  and  its  absolute  necessity  to  the  preservation  of 
the  union.  We  are  told  a  similar  provision  was  found  in 
all  the  most  famous  governments  of  antiquity,  particularly 
of  Sparta  and  of  Rome  ;  that  it  was  with  them  the  great 
preservative  principle  of  liberty,  and  to  which  is  justly  attri- 
buted their  stability,  their  long  endurance  and  prosperity  ; 
that  in  modern  times  we  have  a  conspicuous  example  in  the 
British  government,  in  the  three  coordinate  departments  of 
that  government,  constituted  of  the  monarch,  the  aristocracy 
or  lords,  and  the  commons  or  representatives  of  the  people. 
The  different  interests  of  these  orders  are  of  rank,  and  con- 
sist of  powers,  prerogative  privileges  and  rights  claimed  by 
each,  and  often  coming  in  conflict  with  each  other.  When 
these  orders  are  deemed  necessary  to  the  continuance  of  the 
government,  each  order  must  necessarily  be  vested  with  a 
power  to  protect  its  own  rights  and  privileges,  and  this  can 
be  done  in  no  other  way  than  by  vesting  them  with  coordi- 
nate powers,  rendering   the  concurrence   of  all   and   oath, 


346  APPENDIX. 

necessary  to  the  validity  of  every  law  or  general  measure  of 
the  government ;    so  that  any  one  of  the  orders  can,  by  a 
simple  non-concurrence,  protect  itself  against  any  law  or 
measure,  which   may  be  supposed  injuriously  to  affect  its 
interests.     "  Happy  for  us,"  he  says,  "  we  have  no  artificial 
and  separate  classes  of  society.     We  have  wisely  exploded 
all  such  distinctions,  but  we  are  not  on  that  account  exempt 
from  all  contrariety  of  interests,  as  the  present  distracted 
and  dangerous  situation  of  our  country,  unfortunately,  but 
too  clearly  proves.     With  us  they  are  almost  exclusively 
geographical,  resulting  mainly  from  difference  of  climate, 
soil  industry  and  productions,  but  are  not   therefore   less 
necessary  to  be  protected  by  an  adequate  constitutional  pro- 
vision,  than   where  the  distinct  interests  rest   in   different 
classes.     The  necessity  is,  in  truth,  greater,  as  such  separate 
and  dissimilar    geographical   interests   are    more   liable   to 
come  into  conflict,  and  arc  more  dangerous,  in  that  state 
than  those  of  any  other  description."     One  prominent  error 
of  the  writer,  and  which  affects  all  his  reasonings  on  the 
subject,  is,  that  he  considers  all  different  and  dissimilar  inter- 
ests as  coming  into  conflict  or  opposition  with  each  other, 
while  I  believe,  that  under  our  institutions,  no  two  or  more 
interests,  the  pursuit  of  which  can  lawfully  be  permitted, 
considered  in  a  political,  civil  or  moral  view,  are  ever  neces- 
sarily opposed,  or   have  any  necessary  tendency  to  opposi- 
tion.    On  the  contrary,  when  rightly  understood,  (and  men, 
nnless  under  some  lh^h  excitemenl  or  temporary  delusion, 
will  readily  understand  whal  is  for  their  benefit,5)  it  may,  with 
the  utmost   confidence,  be  asserted   thai  there  is  a  general 
harmony  of  -all   such    interests.     As  for    instance,   between 


APPENDIX.  347 

the  agriculturist  and  the  manufacturer.  The  agriculturist, 
whether  his  products  consist  of  raw  material,  as  cotton,  flax, 
hemp  or  wool,  or  of  articles  of  subsistence,  as  beef,  pork, 
butter,  cheese  and  bread  stuffs,  is  deeply  interested  in  the 
success  and  prosperity  of  the  manufacturer,  the  greater  his 
demand  on  the  agriculturist  for  the  materials  of  his  manu- 
facture and  the  means  of  subsistence,  a  demand  for  those 
articles  which  must  mostly  perish  on  hand,  or  cease  to  be 
produced  ;  and  the  more  ready,  cheap  and  abundant  will  be 
his  supply  of  the  articles  and  implements  necessary  to  any 
advantageous  pursuit  of  his  business,  or  that  contribute  to 
the  necessities,  comforts  and  conveniencies  of  life.  Nor  is 
the  manufacturer  less  deeply  interested  in  the  success  of  the 
agriculturist,  which  secures  to  him  a  more  cheap  and  abun- 
dant supply  of  the  necessary  means  of  subsistence,  and  the 
materials  of  his  manufacture,  while  the  success  of  both 
unite  in  the  public  prosperity.  Nor  can  it  affect  the  real 
mutuality  of  the  interests,  whether  they  reside  in  the  same 
or  in  different  geographical  divisions  of  the  country,  be- 
tween which  there  is  a  free  commercial  intercourse.  It  is 
thus  that  the  cotton  manufacturers  of  the  north,  including  all 
the  manufacturers  and  agriculturists  of  that  region,  have  a 
steady  interest  in  the  success  of  the  cotton  planters  of  the 
south,  from  whom  alone  they  can  expect  a  supply  of  cot- 
ton, the  important  material  in  their  manufacture,  the  duty 
of  three  cents  per  pound  on  foreign  cotton  imported,  amount- 
ing to  a  prohibition.  And  surely  the  cotton  planter  is  equally 
interested  in  extending  his  market,  by  furnishing  a  steady 
supply  to  the  increasing  demand  of  the  manufacturers.  In- 
deed, it  is  nothing  short  of  a  paradox  to  assert,  that  the  dif- 


348  APPENDIX. 

ference  of  climate,  soil,  industry  and  productions  in  the 
different  states,  or  geographical  divisions  of  the  country, 
should  create  differenl  and  dissimilar  interests  in  the  sense 
of  the  writer.  As  to  the  proof  of  a  contrariety  of  interests 
to  be  found,  as  he  tells  us,  in  the  present  distracted  and 
dangerous  state  of  the  country,  it  is  a  proof  of  a  contrariety 
of  opinion,  which  on  the  part  the  writer  has  espoused,  ap- 
pear to  me,  as  they  do  to  a  majority  of  two-thirds,  if  not 
three-fourths  of  the  states,  as  baseless  as  are  his  opinions 
which  have  been  examined  on  the  great  constitutional 
question. 

To  proceed  with  his  system  of  self- protection,  to  be  vested 
in  the  several  states,  and  his  reasons  why  there  ought  to 
be  such  a  provision :  He  tells  us  that  a  constitutional  pro- 
vision of  the  right  of  self-protection,-  in  the  case  of  separate 
and  dissimilar  geographical  interests,  is  more  necessary  than 
in  the  case  of  difference  of  ranks,  as  such  interests,  accord- 
ing to  his  assertion,  arc  more  liable  to  come  into  conflict, 
and  are  more  dangerous  in  that  state,  than  those  of  any 
other  description.  We  are  told,  "  So  numerous  and  diver- 
sified are  the  interests  of  our  country,  that  they  could  not 
be  represented  in  a  single  government,  organized  so  as  to 
give  each  great  and  leading  interest  a  separate  and  distinct 
voice,  as  in  the  governments  to  which  1  have  referred.  A 
plan  was  then  adopted,  better  suited  to  our  situation,  but 
perfectly  novel  in  its  character.  Tin  powers  of  govern- 
ment were  divided,  not  as  heretofore,  in  reference  to  classes, 
but  geographically.  One  general  governmenl  was  formed 
for  the  whole,  to  which  was  delegated  all  the  powers,  sup- 
posed to  be  necessary  to  regulate  the  interests  common  to 


APPENDIX.  349 

all  the  states,  leaving  others  subject  to  the  separate  control 
of  the  states,  being,  from  their  local  and  peculiar  character, 
such  that  they  could  not  be  subject  to  the  will  of  the  whole 
Union,  without  the  certain  hazard  of  injustice  and  oppres- 
sion. It  was  thus  that  the  interests  of  the  whole  were  sub- 
jected, as  they  ought  to  be,  to  the  will  of  the  whole,  while 
the  peculiar  and  local  interests  were  left  under  the  care  of 
the  states  separately,  to  whose  custody  only  they  could  be 
safely  confided.  This  distribution,  to  which  all  the  states  are 
parties,  constitutes  the  peculiar  character  and  excellence  of 
our  political  system  ;  it  is  truly  and  emphatically  American, 
without  example  or  parallel."  The  intention  of  the  writer,  in 
this  paragraph,  is  to  show,  that  the  framers  of  the  federal 
constitution  had,  at  the  time,  a  clear  view  of  his  separate, 
dissimilar,  and  unavoidable  conflicting  interests,  arising  from 
the  geographical  causes  he  has  assigned,  and  the  necessity 
of  providing  for  each  geographical  division,  or,  which  is 
the  same  thing,  each  state,  the  separate  interests  of  which 
might  be,  as  it  was  then  supposed,  injuriously  affected  by 
any  law  of  the  general  government,  the  power  and  right  of 
self-protection.  He  has  not  asserted,  though  his  manner  of 
expression  seems  to  imply  it,  that  the  division  was  made 
with  a  view  to  the  present  government.  It  existed  in  the 
several  colonies,  long  before  they  became  independent  states, 
before  any  conception  of  a  national  union.  Nor  does  he 
assert,  nor  will  he  venture  to  assert,  that  any  such  express 
provision  is  to  be  found  in  the  constitution.  But  that  it  is 
to  be  inferred  from  the  supposed  views  and  intention  of  the 
framers,  and  from  what  he  considers  the  necessity  of  the 
case.  And  where  are  we  to  find  the  proof  of  this  inten- 
44 


350  APPENDIX. 

lion  ?  Not  a  hint  is  to  be  found  in  any  expression  of  the 
constitution  ;  not  a  hint  in  the  journals  and  debates  of  the 
general  convention,  nor  in  the  debates  of  the  several  state 
conventions,  who  ratified  the  constitution,  as  far  as  they  have- 
been  published  ;  not  a  hint  in  any  of  the  amendments  that 
have  since  been  adopted.  On  the  contrary,  it  Mas  the  gene- 
ral complaint  of  the  opponents,  that  the  constitution  left  the 
several  states  powerless  ;  it  left  them  neither  the  power  nor 
the  right  of  protecting  themselves  agaiiwi  any  stretch  of 
power  by  the  general  government.  It  was  not  only  said 
that  the  states  were  degraded  from  their  sovereignty,  but,  in 
a  strain  of  exaggeration,  they  were  declared  to  be  reduced  to 
the  humble  grade  of  corporations,  existing  at  the  pleasure  of 
the  general  government,  and  soon  to  be  swallowed  up  in  the 
vortex  of  its  power  ;  and  although  these  complaints  and  the 
objections  they  conlaincd  were  fully  answered  on  the  other 
side,  yet  was  there  not  an  attempt  to  obviate  them  by  a  hint 
of  a  provision  for  this  self-protecting  power,  either  express 
or  implied,  in  the  general  constitution,  or  in  the  modified 
constitution  of  the  several  stales.  Of  all  this  Mr.  Calhoun 
could  not  have  been  ignorant,  although  he  might  not  have 
called  it  to  mind  while  writing.  With  respeel  to  some  further 
observations  which  he  has  made,  on  the  division  of  powers, 
I  shall  have  further  occasion  to  speak.  I  think  we  have 
given  Bufficienl  specimens  of  his  reason  for  the  introduction 
of  this  system  of  self-protection.  Let  us  now  attend  to  the 
system  itself;  the  manner  in  which  it  is  to  be  exercised,  for 
tlir  attainmenl  of  its  object,  and  iis  final  consequences  to  the 
government.  It  will  be  recollected  thai  the  right  of  self- 
protection  is  supposed   io  be  derived  t<>  each  state  from  its 


APPENDIX.  351 

independent  sovereignty,  which  it  is  asserted  still  remained, 
and  is  reserved  to  the  several  states,  or  at  least  a  portion  of 
that  sovereignty  sufficient  for  the  purpose,  notwithstanding 
the  delegation  to  the  general  government  of  all  those  powers, 
in  which  national  sovereignty  consists,  and  the  prohibition 
to  the  several  states  of  the  exercise  not  only  of  those  powers, 
but  of  such  other  powers  of  domestic,  or,  as  it  may  be  pro- 
perly denominated,  municipal  sovereignty,  as,  it  was  be- 
lieved, might,  under  the  influence  of  sectional  prejudices,  or 
an  undue  preponderance  of  sectional  interests,  prove  detri- 
mental to  the  interests  of  the  whole,  interrupt  the  national 
harmony,  and  the  reciprocal  enjoyment  of  national  privi- 
leges among  the  citizens  of  the  several  states,  in  their  inter- 
course with  each  other. 

The  consequence  of  this  supposed  reservation  of  power  is, 
that,  as  all  sovereign  and  independent  states  are  equal  among 
themselves,  in  power  and  rights,  each  state  must  have  a 
power  coordinate  with  that  of  the  general  government,  and 
with  the  several  co-states.  These  powers,  however,  are  not  as 
in  the  several  departments  of  the  British  government,  to  be 
coordinate  in  their  exercise.  No  state  is  permitted  a  voice 
in  the  passage  of  an  act  by  the  general  government.  When 
the  act  has  been  passed,  and  has  become  the  supreme  law 
of  the  land,  then,  and  not  till  then,  the  protective  power 
may  be  interposed.  If  any  one  of  the  states  shall  judge 
the  law  to  be  injurious  to  its  separate  interests,  or  a  danger- 
ous infraction  of  the  national  compact,  which,  according  to 
the  doctrine  laid  down,  as  the  state  is  to  be  its  oavii  sove- 
reign judge,  or,  which  will  always  be  the  same  thing,  it  has 
the  right  of  interposing  its  veto,  to  suspend  the  operation, 


352  APPENDIX. 

or,  in  more  modern  phrase,  to  nullify  the  obnoxious  law 
•within  the  limits  of  its  jurisdiction,  the  limits  of  the  state  ;  so 
that  the  state  may  be  said  to  have  a  recusant  rather  than  a 
concurrent  voice  ;  and  this  act  of  the  state  is  a  constitu- 
tional, and  therefore  a  peaceable  act  —  an  appeal  to  the  co- 
states,  instead  of  an  appeal  to  force,  the  usual  resort  of  sove- 
reigns. He  says,  "  The  states  themselves  may  be  appealed 
to,  three  fourths  of  which,  in  fact,  form  a  power,  whose  de- 
crees are  the  constitution  itself,  and  whose  voice  can  silence 
all  discontent.  The  utmost  extent  then  is,  that  a  state  acting 
in  its  sovereign  capacity,  as  one  of  the  parties  to  the  consti- 
tutional compact,  may  compel  the  government,  created  by 
that  compact,  to  submit  a  question,  touching  its  infraction, 
to  the  parties  who  created  it." 

We  are  not  here  told,  by  what  authority,  or  in  what  man- 
ner the  general  government  are  to  submit  the  question  to  the 
parties,  that  is  to  the  states,  for  a  decision  ;  but  as  to  the 
manner  we  must  suppose  from  several  expressions,  and  from 
the  approbation  with  which  he  has  introduced  the  authority 
of  Mr.  Jefferson  on  a  similar  subject,  it  is  to  be  by  calling  a 
general  convention  of  the  states.  But  no  single  state,  with 
all  its  sovereignty,  has  any  right,  any  power,  to  compel  con- 
gress to  assume  a  power  not  delegated  by  the  constitution. 
That  instrument  has  conferred  on  congress  no  power  to  sub- 
mit any  question  touching  its  infractions,  either  to  a  conven- 
tion or  to  the  states  themselves.  So  far  from  this,  it  has,  as 
has  been  already  shown,  very  explicitly  referred  all  questions 
of  this  kind  to  the  constituted  tribunal,  the  judiciary  of  the 
United  States.  If  any  power,  delegated  or  reserved,  shall 
be  found  to  be  oppressive  or  unequal  in  its  operation,  or 


APPENDIX.  353 

liable  to  abuse,  a  remedy  is  provided  by  an  amendment  of 
the  constitution,  limiting,  modifying,  or  wholly  expunging 
such  power.  But  such  amendment  must  be  proposed  and 
ratified  in  the  mode  and  manner  prescribed  by  the  constitu- 
tion, and  no  other.  For  the  sovereign  people  have  pre- 
scribed modes  and  limitations  to  the  exercise  of  their  own 
power,  as  well  as  that  of  their  rulers  ;  the  manner  in  which, 
by  whom,  and  for  what  purposes,  it  shall  be  called  into 
action.  Whether  they  are  to  exercise  it  by  themselves,  by 
their  representatives  in  convention,  or  in  their  legislative  as- 
semblies. The  mode  of  exercising  the  power  of  amending 
the  constitution,  and  the  authorities  of  the  several  acting  par- 
ties, from  the  inception  to  the  final  ratification  of  the  amend- 
ments proposed,  are  definitively  pointed  out  and  limited  ; 
particularly  the  power  of  the  general  convention,  the  convo- 
cation of  which  is  authorized  alone  by  the  fifth  article  of  the 
constitution,  as  already  recited,  is  limited  to  the  sole  object 
of  proposing  amendments.  And  surely  the  writer  will  not 
venture  to  assert,  that  there  is  in  this  article,  or  in  any  other 
article  of  that  instrument,  any  provision  or  hint  of  a  provision 
for  the  calling  of  a  general  convention  for  any  other  purpose 
or  object.  Will  it  then  be  contended  that  necessity  makes  a 
law  for  itself  ?  That  the  state  power  exists  from  necessity, 
that  hence  from  necessity  is  derived  the  state  right  of  self- 
protection  —  the  right  of  suspending  an  obnoxious  law  of  the 
general  government,  in  the  nature  of  an  appeal  to  the  states, 
the  original  parties  to  the  constitution,  that  the  same  neces- 
sity will  legitimate  the  calling  of  a  general  convention  to  de- 
cide on  the  appeal,  and  authorize  the  convention  to  make 
the  decision  and  furnish  the  means  of  compelling  the  parties, 


354  APPENDIX. 

in  which  the  general  government  is  included  to  abide  the 
decision  ?  Certainly  not,  by  Mr.  Calhoun.  He  would  in- 
stantly perceive  that  such  a  doctrine  would  insure  a  speedy 
dissolution  of  all  civfl.  institutions  ;  although  he  does  not  per- 
ceive that  the  doctrines  which  he  is  advocating  would 
equally  insure  a  dissolution  of  the  union. 

We  will,  however,  suppose  all  difficulties  surmounted, 
and  a  convention  of  the  states  meet  to  decide  the  appeal, 
could  an  impartial  decision  be  expected  ?  Public  opinion 
continuing  the  same,  the  same  majority  would  be  found  in 
the  convention  in  support  of  the  law,  which  had  prevailed, 
in  its  passage  by  congress  —  and  the  final  decree,  instead  of 
being  a  dove  to  silence  discontent,  would  serve  only  to 
cherish  discord,  and  administer  food  to  party  discontent. 
And  yet  we  are  very  gravely  and  zealously  assured,  that 
such  are  the  only  means  that  have  been,  or  can  be  devised 
for  the  preservation  of  the  union  of  the  states.  On  a  candid 
review  of  the  whole  subject,  it  is  extremely  clear  that,  if  the 
power  and  the  right  contended  for,  remained  on  the  adoption 
of  the  constitution,  and  was  reserved  to  the  several  states,  it 
was  something  that  wholly  escaped  the  discernment  of  those 
who  framed,  or  those  who  ratified  that  instrument,  as  well 
as  those  who  prepared,  and  those  who  ratified  the  subsequent 
amendments  —  and  it  is  clear  that  the  doctrine  of  state  rights 
so  zealously  advocated  by  Mr.  Calhoun,  has  no  foundation 
in  the  constitution,  in  reason  or  common  sense. 

Before  I  proceed  to  examine  .Mr.  Calhoun's  opinion  on  the 
constitutionality  and  the  effects  <>l'  the  tariff,  in  which  1  shall 
be  very  brief,  I  will  endeavor  to  define,  or  rather  to  delineate 
the  relations  as  they  exist  between  the  general  and  the  state 


APPENDIX.  355 

governments.  There  is,  as  before  observed,  a  want  of  ap- 
propriate terms,  that  renders  it  less  easy  to  express,  than  to 
conceive  those  relations.  In  developing  these  relations  we 
shall  make  the  constitution  our  guide,  but  to  a  correct  un- 
derstanding of  all  the  provisions  of  that  instrument,  and  their 
several  bearings,  it  will  be  necessary  to  take  a  concise  view 
of  the  constitution  that  preceded  it,  the  old  confederation,  its 
prominent  defects,  the  causes  of  failure,  the  evils  intended  to 
be  remedied  and  the  great  end  to  be  attained.  On  the  de- 
claration of  independence  in  July,  1776,  the  colonies,  now 
states,  assumed,  severally,  the  powers  and  character  of  inde- 
pendent sovereignties,  independent  states.  They  had,  from 
the  commencement  of  the  revolutionary  contest,  acted  in 
concert  in  the  common  cause,  under  the  direction  of  a  con- 
gress, consisting  of  delegates  from  the  several  colonies,  whose 
authority  was  merely  that  of  influence,  supported  by  the 
necessity  of  united  efforts  against  their  common  and  pow- 
erful enemy.  In  this  situation  it  was  clearly  perceived  by 
all,  that  in  order  to  their  success  in  the  struggle,  and  to  place 
them  on  a  respectable  footing  with  the  nations  of  the  earth, 
among  whom  they  were  taking  a  station,  a  closer  and  lasting 
union  must  be  formed,  and  a  general  government  estab- 
lished, with  sufficient  power  and  authority  to  act,  and  to 
transact  the  common  concerns  of  the  Avhole  as  a  nation. 
Accordingly  the  old  confederation  was  formed,  approved 
and  ratified  by  the  several  states,  acting  respectively  in 
their  characters  of  independent  sovereigns.  The  first  article 
merely  declares  the  style  of  the  confederacy  to  be  "  The 
United  States  of  America."  The  second  article  declares 
that  "  each  state  retains  its  sovereignty,  freedom  and  hide- 


356  APPENDIX. 

pendence,  and  every  power,  jurisdiction  and  right  which  is 
not  by  this  confederation  expressly  delegated  to  the  United 
States  in  congress  assembled."  Article  3d.  "  The  several 
states  hereby  enter  into  a  firm  league  of  friendship  with  each 
other  for  their  common  defence,  the  security  of  their  liberties, 
and  their  mutual  and  general  welfare."  In  determining 
questions  in  congress,  as  all  independent  sovereigns  are  equal 
in  dignity,  however  unequal  in  other  respects,  each  state  was 
to  have  one  vote.  For  the  more  convenient  management  of 
the  general  affairs  of  the  United  States,  delegates  were  to  be 
annually  appointed  in  such  manner  as  the  legislature  of  each 
state  should  direct,  to  meet  in  congress  on  a  certain  day  in 
every  year.  The  power  stipulated  in  this  league  to  be  con- 
ferred on  congress,  were,  in  many  respects,  the  same  as 
were  afterwards  delegated  to  the  general  government  by  the 
constitution  of  the  United  States,  and  gave  the  confederation, 
on  paper,  the  semblance  of  a  government ;  withholding, 
however,  those  powers,  without  which  all  other  powers  are 
merely  nominal  ;  and  the  grant  of  these  essential  powers 
was  withheld,  because  they  could  not  consist  with  the  inde- 
pendent sovereignty  of  the  several  states.  Congress  was  not 
provided  with  a  judiciary  or  an  executive.  All  their  acts,  as 
well  as  the  articles  of  confederation,  were  subject  to  the  in- 
terpretation of  the  Legislatures,  and  judicial  tribunals  of  thir- 
teen independent  slates  ;  and  for  carrying  their  measures 
into  effect,  they  were  dependent  on  the  good  pleasure  of  the 
legislatures,  and  executives  of  these  same  sovereign  states. 
They  had  the  power  of  making  treaties,  but  not  the  power 
of  fulfilling  any  stipulations  on  their  part.  They  had  power 
of  declaring  war,  bul  had  the  command  of  no  resources  to 


APPENDIX.  357 

maintain  a  war.  They  had  no  power  to  raise  a  revenue,  the 
power  of  laying  or  collecting  taxes  of  any  kind,  direct  or  in- 
direct. Their  power  went  no  farther  than  to  ascertain  the 
amount  necessary  to  be  raised  for  the  public  service,  and  ap- 
portion it  among  the  several  states  according  to  a  rule  pre- 
scribed, with  a  request  that  each  should  raise  its  respective 
quota,  which  each,  as  an  independent  sovereignty,  might 
choose  or  refuse  at  pleasure  ;  and  which  was  in  fact  often 
refused  or  neglected  with  impunity.  It  is  true,  congress 
were  empowered  to  borrow  money,  and  emit  bills  on  the 
credit  of  the  United  States,  but  without  the  command  of 
funds  to  pay  the  one  or  redeem  the  other.  They  issued 
their  acts  which  they  denominated  ordinances  ;  they  never 
ventured  to  give  them  the  name  of  laws ;  for  what  property 
of  a  law  has  an  act  that  all  and  every  of  the  parties  may 
obey  or  not,  at  its  sovereign  will  and  pleasure.  It.  is  true, 
that  the  pressure  of  the  war  and  the  patriotic  zeal  of  the  citi- 
zens in  a  common  cause,  in  which  their  all  —  life,  liberty, 
and  property  was  at  stake,  supplied,  in  some  degree,  the 
want  of  power  in  congress.  In  addition  to  this,  a  fortunate 
concurrence  of  circumstances  in  the  political  world,  enabled 
congress  to  engage  in  the  cause  of  the  country  some  of  the 
most  powerful  nations  of  Europe,  to  triumph  in  the  event  of 
the  contest,  and  to  obtain  from  Great  Britain  a  full  acknow- 
ledgment of  the  sovereignty  and  independence  of  the  United 
States.  But  no  sooner  was  the  war  ended,  and  peace  re- 
stored to  the  country,  than  the  evils  of  this  imbecile  system 
of  confederation  were  fully  developed,  to  the  astonishment 
of  many  and  the  regret  of  all.  The  credit  of  the  United 
States  was  sunk  to  the  lowest  ebb,  and  with  it  that  of  the  in- 
45 


358  APPENDIX. 

dividual  states,  involving  in  the  same  ruin  all  credit,  all  con- 
fidence, both  public  and  private.  The  scenes  of  perplexity 
and  distress  that  followed  throughout  the  country,  pressing 
on  the  very  verge  of  anarchy,  are  remembered  by  many  still 
surviving,  and  are  well  known  to  all  conversant  in  the  his- 
tory of  those  times. 

The  experience  acquired  from  observation  of  the  failure 
of  the  system  of  federal  union,  the  causes  of  the  failure,  and 
the  consequences  that  followed,  disclosed  the  necessity  and 
suggested  the  plan  of  an  energetic  national  government. 
The  plan  thus  suggested  was  afterwards  matured  and  suc- 
cessfully adopted  in  forming  the  constitution  of  the  United 
States.  At  the  time  of  forming  the  constitution,  each  of  the 
states  was  possessed  of  the  full  and  complete  sovereignty, 
embracing  both  the  national  and  the  domestic,  or,  with 
more  propriety,  the  municipal  sovereignty,  within  its  limits. 
It  was  deemed  desirable  or  indispensable,  that  the  separate 
states  should  still  retain  and  exercise,  under  their  respective 
constitutions,  the  municipal  or  local  sovereignty,  subject  to 
no  interference  or  control  of  the  general  government,  except 
in  some  few  instances,  in  which  such  exercise  might  endan- 
ger a  conflict  with  the  general  interest.  And  it  was  deemed 
equally  indispensable  to  any  practical  national  union  under 
a  general  government,  that  all  the  powers  which  constitute 
independent  national  sovereignty,  should  be  transferred  from 
the  several  states  and  vested  in  such  government ;  without 
which  it  must  prove  equally  inefficient  with  the  nominal 
government  under  the  confederation.  There  is  no  reserva- 
tion to  the  states  of  that  sovereignty  and  independence,  nor 
is   it   expressly   denied   to   them ;    indeed,   the   expression 


APPENDIX.  359 

"  sovereignty  and  independence,"  or  even  the  word  "  sove- 
reign," or  "sovereignty,"  is  not  to  be  found  in  that  instru- 
ment. The  term  seems  to  have  been  purposely  avoided ; 
perhaps  because  it  was  thought  not  to  be  applicable,  under 
our  institutions,  to  the  internal  relations  of  cither  the  general 
or  state  governments,  in  the  absolute  sense  in  which  it  is  used 
by  English  statesmen  and  jurists.  They  define  it  to  be  an 
absolute,  uncontrolled,  and  uncontrollable,  arbitrary,  and  de- 
spotic power,  which  must  necessarily  exist  in  every  govern- 
ment, wherever  it  may  be  lodged.  And  in  that  government 
they  placed  it  in  their  parliament,  the  three  estates  of  the 
realm.  This,  however,  is  not  true  of  that  government  in 
practice,  whatever  may  be  the  theory.  It  is  there,  by  the 
forms  of  the  constitution,  placed  under  the  constant  and 
powerful  control  of  public  sentiment.  With  us  it  is  ex- 
pressly limited  by  our  constitution,  which  subjects  it  not 
only  to  the  tribunal  of  public  sentiment,  but  to  the  legal 
control  of  an  independent  judicial  tribunal,  whose  interpre- 
tations of  the  constitution,  and  their  decisions  on  the  consti- 
tutionality of  the  laws  are  final  and  conclusive.  It  was, 
therefore,  probably  deemed  safer  to  enumerate  the  powers 
delegated  to  the  general  government,  and  the  powers  with- 
held or  limited  on  the  one  hand,  and  the  powers  limited, 
modified,  or  prohibited  1o  the  several  states,  on  the  other, 
without  expressing  the  result  in  either  case,  by  a  term  or 
terms  which  might  lead  to  a  doubtful  or  erroneous  construc- 
tion. 

The  United  States,  as  a  nation,  are  sovereign  and  inde- 
pendent. This  sovereignty  is,  by  the  constitution,  vested  in 
the   general   government.     Tn    their  relations   with    foreign 


360  APPENDIX. 

powers,  in  their  intercourse  with  independent  nations,   the 
sovereignty  is  absolute  and  independent,  in  the  sense  of  the 
law  of  nations,  which  places  all  sovereign  states  on  the  same 
footing  ;    but  in  its  relations  to  the  people,  and  to  the  local  or 
state  governments,  it  is  a  limited  sovereignty  ;    and  although 
its  laws  are  declared  to  be  supreme,  they  are  supreme  within 
the  limits  only  prescribed  by  the  constitution.     In  this  view 
of  the  subject,  the  several  states  may  be  said  to  be  sove- 
reign, but  not  independent.     Each  is  still  in  possession  of 
sovereign  power,  but  it  is  a  limited  sovereignty,  adapted  to 
the  superior  sovereignty  of  the  national  government.     The 
sovereignty  of  the  several  states  is  local,  confined  in  each 
within  its  local  limits.     It  is  wholly  municipal  in  its  charac- 
ter, and  embraces  those  local  concerns  and  interests  only, 
which  were  considered  as  not  having  a  national  character, 
or  not  to  affect  the  general  interest  of  all,  as  forming  a  na- 
tional whole.     Thus,  while  the  general  government  is  vested 
with  supreme  authority,  in  all  matters  that  involve  the  gene- 
ral welfare  of  the  Union,  considered  in  a  national  view,  the 
state  governments,  within  the  limits  of  their  respective  juris- 
diction, retain  as  sovereign  all  those  powers,  which,  in  their 
due  administration,  must  endear  the  social  state  to  mankind. 
To  them,  among  their  own  citizens  respectively,  it   belongs 
to  regulate  the  mode  of  acquiring,  and  to  secure  the  acqui- 
sition of  property ;  to  cherish  and  protect  all  the  social  rela- 
tions ;    to  provide  for  an  equal  administration  of  justice  ;  to 
promote  the  means  of  education,   and  facilitate  the  diffusion 
of  useful  knowledge  through  all  classes  ;  to  animadvert  upon 
morals,  and  punish   those  crimes  which  attack  private  pro- 
perty, violate  personal  security,  or  in  any  manner  disturb 


APPENDIX.  361 

the  peace  of  the  community.  Each  of  the  several  states 
may  be  said  to  be  independent,  in  the  exercise  of  the  muni- 
cipal sovereignty,  in  one  sense,  that  no  power  external  to 
the  state  has  a  right  of  interference,  or  to  control  it  while 
exercised  within  the  limits  as  prescribed  ;  but  not  in  the 
usual  and  appropriate  sense  of  sovereign  and  independent ; 
because,  among  other  things,  certain  limits  are  set  to  that 
sovereignty,  as  it  relates  to  the  general  government,  which 
the  state  governments  are  forbidden  to  exceed,  and  of  which 
the  constitution  of  the  United  States  has  made  the  former 
government  the  sole  guardian,  and  the  sole  judge  of  the 
excess.  What  is  conclusive  on  this  subject,  if  anything  can 
be  so,  is,  that  the  right  of  final  decision,  in  all  cases  arising 
under  the  constitution  and  laws  of  the  United  States,  and 
treaties  made  under  its  authority,  in  all  cases  to  which  the 
United  States  shall  be  a  party,  either  with  a  state  or  its  citi- 
zens, in  all  controversies  between  two  or  more  states,  or  in 
which  a  state  shall  be  a  party,  is  vested  in  the  general  gov- 
ernment, through  the  proper  department,  the  judiciary  of  the 
United  States.  Nor  is  there  a  single  instance,  in  Avhich  a 
state  is,  by  the  constitution,  permitted  to  judge  for  itself,  in 
any  question  relating  to  the  powers  or  acts  of  the  general 
government  —  a  right  necessarily  incident  to  the  sovereignty 
and  independence  of  a  state,  and  without  which  no  such  in- 
dependence can  exist.  As  has  before  been  observed,  the 
constitution  and  laws  of  the  United  States  are  declared  to 
be  the  supreme  law  of  the  land,  and  binding  on  all  the 
judges  in  every  state,  notwithstanding  anything  to  the  con- 
trary in  the  constitution  or  laws  of  any  state  ;  and  all  the 
functionaries,  all  the  officers  of  the  several  states,  legisla- 


362  APPENDIX. 

tive,  executive,  and  judicial,  are  required  to  be  bound  by 
solemn  oath  to  support  the  constitution  of  the  United  States, 
that  is,  to  support  the  government  in  all  its  constitutional 
acts,  in  all  its  departments.  Each  and  every  state,  with 
their  several  governments,  is  therefore  bound  by  the  same 
solemn  obligation.  A  state  or  a  government  without  func- 
tionaries, by  whom  it  may  be  administered,  is  a  mere  ab- 
stract entity,  incapable  of  energy,  incapable  of  action.  It  is 
a  self-evident  truth,  that  the  obligation  of  the  state  or  govern- 
ment is  identical  with  that  of  its  functionaries.  The  several 
states  are  therefore  bound  by  all  the  constitutional  acts  of 
the  general  government,  but  that  government  is  not  bound 
by  the  laws  of  any  state,  or  of  every  state,  should  each  with 
all  solemnity  enact  the  same  thing.  I  am  here  speaking  of 
the  ordinary  powers  of  legislation,  which  belong  to  the  state 
governments,  not  of  the  extraordinary  powers  of  legislation, 
which  belong  to  the  sovereign  people  only ;  and  which  is 
employed  solely  in  enacting,  altering,  or  amending  the  con- 
stitution of  the  state  governments,  and  has  no  bearing  on 
the  present  subject.  I  say,  the  general  government  is  not 
bound  by  a  state  law  ;  they  are  indeed  bound  to  respect  the 
laws  of  the  several  states,  not  transcending  the  bounds  of 
their  municipal  sovereignty,  as  it  respects  the  constitution  of 
the  United  States,  so  far  as  not  to  interpose  any  control ; 
but  this  is  totally  different  from  an  obligation  to  obey  the 
law.  The  general  government  is  bound,  on  application  of 
the  legislature,  or  the  executive  of  a  Btate,  as  the  case  may 
be,  to  assist  in  suppressing  any  insurrection  against  its  au- 
thority ;  bul  this  is  the  obligation  of  an  auxiliary,  which  sup- 
poses no  superiority  on  the  one  side  or  the  other.    Somewhat 


APPENDIX.  363 

different  is  the  case,  where  a  state  cannot  act  without  the 
permission  of  the  general  government.  It  indicates  a  supe- 
riority in  that  government.  It  is  true  the  permission  is  not 
compulsory  on  the  state,  but  it  is  compulsory  on  the  state 
not  to  act  without  the  permission. 

On  the  closest  scrutiny  we  may  then  repeat  the  assertion, 
that  the  power  of  the  national  government,  constitutionally 
administered,  has,  whenever  it  comes  in  contact  with  the 
acts  of  the  state  governments,  a  declared  superiority.  We 
nowhere  find  those  relations  of  equality  which  Mr.  Jefferson 
has  in  effect  asserted  in  denominating  them  coordinate  de- 
partments. It  is  true,  the  general  and  the  state  governments 
were  intended  to  include  the  whole  government  of  the  coun- 
try, and  to  each  was  assigned  its  part.  The  former  consti- 
tuted the  national  government,  vested  with  the  national 
sovereignty,  and  charged  with  the  national  interest  of  the 
whole.  The  latter,  the  state  governments,  were  local,  vested 
severally  with  the  municipal  sovereignty  within  their  respec- 
tive limits,  and  all  united  under  one  national  government. 
The  state  governments  were,  as  we  have  seen,  placed  in  due 
subordination  to  the  general  government  in  all  those  matters 
and  those  only  which  Avere  deemed  to  be  of  general  concern, 
and  to  embrace  the  interest  of  the  whole  as  one  nation. 
This  was  not  left  to  the  arbitrary  discretion  of  either.  The 
powers  and  rights  of  each  are  limited  and  adjusted  by  the 
constitution  itself.  Without  all  this  the  general  government 
would  certainly  have  a  strong  resemblance  to  a  joint  com- 
mission, to  which  it  is  compared  by  Mr.  Calhoun  ;  but  a 
commission  of  a  peculiar  kind,  in  which  any  of  the  parlies 
should  have  a  right  reserved  to  disavow  any  act  of  the  com- 


364  APPENDIX. 

missioners,  and  withdraw  himself,  or  to  dissolve  the  com- 
pact at  his  pleasure.  There  is,  however,  one  provision  in 
the  constitution,  on  which  Mr.  Jefferson  seems  to  have 
mainly  relied,  as  the  foundation  of  his  two  coordinate  de- 
partments, although  according  to  his  construction,  if  it  proves 
anything,  it  proves  the  superiority  of  one  of  the  depart- 
ments—  that  consisting  of  the  several  states — but  it  is  very 
clear  that  it  proves  nothing  to  the  purpose  ;  for  the  question 
is,  not  what  may  be  at  some  future  period,  but  what  at  pre- 
sent are  the  existing  relations  between  his  departments,  not 
what  the  constitution  may  be,  but  what  it  is.  Mr.  Jefferson 
seems  to  have  caught  his  idea  on  the  subject  from  the  recol- 
lection of  a  general  convention,  to  be  called,  without  any 
distinct  recollection  of  the  purpose  for  which  alone  its  call  is 
authorized.  It  is  not,  as  before  observed,  to  decide  what 
are  the  constitutional  powers  of  the  general  government,  or 
the  right  of  the  several  states  as  subsisting  at  the  time  ;  bul 
to  recommend  what  they  should  be  at  a  future  period  by 
proposing  amendments  of  the  constitution  to  this  effect.  If 
any  amendments  are  so  proposed,  they  are  to  be  referred 
for  ratification  to  the  sovereign  people,  acting  either  by  their 
representatives  in  convention,  to  be  called  in  the  several 
states,  or  by  their  representatives  in  the  several  state  legisla- 
tures, and  in  the  latter  case  the  representatives  act  not  in  the 
character  of  ordinary  legislators,  but  in  the  character,  and 
exercising  the  extraordinary  powers  of  the  people,  which 
they  have  reserved  to  themselves  over  the  constitution,  from 
whom  it  originated.  And  if  the  amendments  proposed  are 
finally  ratified,  the  ratification  is  the  voice  of  the  sovereign 
people  of  each  state,  in   concurrence  with  the  voice  of  the 


APPENDIX.  365 

people  of  all  the  states,  or  at  least  of  three-fourths  of  all  the 
states.  When  the  people  have  thus  ratified,  or  shall  have 
rejected  the  proposed  amendments,  the  power  is  executed, 
and  becomes  dormant.  No  portion  of  it  remains  to  the 
several  states,  or  any  of  them.  All  that  remains  is  the  right 
of  again  calling  it  into  exercise  in  the  mode  and  in  the  man- 
ner prescribed.  It  is  evident,  therefore,  that  this  reservation 
of  power  to  the  people,  not  to  the  states  or  state  govern- 
ments, as  such,  is  wholly  misapplied  by  Mr.  Jefferson  as 
well  as  by  Mr.  Calhoun  and  his  party  in  favor  of  state 
rights. 

There  are  too  objections,  deemed  by  the  advocates  for 
state  sovereignty  and  independence,  which  ought  at  least  to 
be  briefly  noticed.  1st,  That  to  give  the  general  govern- 
ment, through  whatever  department,  the  sole  right  to  judge 
of  its  own  powers,  is  to  reduce  the  several  states  from  inde- 
pendent governments  to  the  subordinate  grade  of  corpora- 
tions, existing  at  the  will  and  pleasure  only  of  that  govern- 
ment. 2d,  That  to  make  the  powers  of  the  general  govern- 
ment, for  any  purposes  or  within  any  limits,  superior  to  the 
state  governments,  is  to  make  the  creature  greater  than  the 
creator.  As  to  the  first  objection,  it  has  often  either  been 
thrown  out  ad  captandum  vulgus,  or  has  been  taken  up  and 
maintained  without  due  consideration.  A  corporation  is  the 
mere  creature  of  the  superior  government,  from  which  it  de- 
rives its  existence,  and  is  dependent  for  its  powers,  and  for 
its  continuance,  on  the  laws  of  the  government.  Not  so  the 
state  governments,  even  admitting  all  the  powers  vindicated 
for  the  general  government.     In  no  sense  do  they  derive 

their  existence  or  their  powers   from   that  government  ;   nor 
40 


366  APPENDIX. 

are  they  dependent  on  its  laws  for  their  continuance,  or  the 
exercise  of  their  rightful  powers  within  the  limits  of  their 
several  jurisdictions.  The  general  government  and  the  seve- 
ral stale  governments  derive  their  existence  and  all  their 
powers  from  the  same  legitimate  source  of  power,  the  sove- 
reign people.  The  government  of  each  state  derives  its 
powers  from  the  act  of  the  people,  within  its  local  limits,  and 
the  general  government  from  the  concurrent  act  of  the  peo- 
ple of  all  the  states  ;  and  the  people  still  retain,  in  the  same 
sovereign  capacity,  the  right  to  change  and  limit  the  powers 
of  both  or  either,  and  so  to  adjust  them,  as  shall  be  deemed 
most  conducive  to  the  general  good.  One  thing  which  gives 
the  greatest  security  to  the  state  governments,  and  to  state 
rights  is,  that  the  members  of  congress  are  elected,  in  a  cer- 
tain ratio,  by  the  people  of  each  state  from  their  own  citi- 
zens, and  for  short  periods,  so  that  they  are  held  constantly 
accountable  for  then  public  conduct  to  their  constituents. 
As  to  the  second  objection,  it  is  held  as  a  general  truth,  that, 
the  creature  cannot  be  made  greater  than  the  creator.  In 
what  sense  does  this  apply  to  government  ?  The  sovereign 
people  create  the  government,  for  the  very  end  thai  it  should 
rule  over  them  :  the  people  instituting  the  government.  But 
is  the  sovereignty  of  the  people  natural  or  conventional  ?  It 
is  so  far  natural,  as  it  has  its  origin  in  the  social  nature  of 
man.  But  in  the  order  of  nature  individuals  arc  first  :  they 
are  the  constituent  parts  of  society.  Being  ever  so  many 
persons  together,  from  different  parts  of  the  world,  so  long 
as  each  individual  or  each  family,  shall  continue  to  live  sepa- 
rately and  independent  of  each  other,  they  cannot  be  said  to 
constitute  a  people  :  that  they  may  constitute  a  people,  it  is 


APPENDIX.  367 

necessary  they  should  become  associated,  cither  by  express 
or  by  tacit  consent.  Then,  and  not  till  then,  they  become  a 
people,  and  capable  of  acting  as  such.  But  in  that  state 
they  cannot  act  without  some  point  of  union,  without  some 
power  instituted  or  assumed  to  concentrate  their  actions  — 
otherwise,  there  will  be  but  a  chaos  of  individual  actions, 
discordant  as  the  individual  wills  ;  in  this  way  only  can  the 
people  be  brought  to  act  efficiently. 

It  has  been  shown,  that  society  is  the  necessary,  and  even 
the  natural  state  of  man ;  and  that  civil  government  is  neces- 
sary to  man  in  society.  In  that  sense  civil  government  is  a 
dictate  of  nature,  and  is  agreeable  to  the  laws  of  nature  ; 
but  the  institution  is  left  to  man  in  his  social  state.  In  that 
state  every  people  have  the  sole  right  of  choosing  and  form- 
ing their  own  institutions  of  government,  of  varying,  chang- 
ing and  adopting  them  to  their  different  situations,  in  the 
progress  of  social  and  civil  improvements.  How  these  insti- 
tutions have  been  introduced  by  tacit  consent  in  the  early 
stages  of  society,  and  become  binding  by  the  force  of  cus- 
tom, need  not  be  here  repeated.  We  will  advance  at  once 
to  that  state  of  social  and  civil  improvements,  in  which  the 
people  have  entered  into  an  express  civil  compact,  or  writ- 
ten constitution,  forming  and  organizing  a  government  for 
themselves,  instituting,  limiting  and  directing  its  necessary 
powers  to  the  end  intended  ;  providing  for  the  selection  and 
appointment  of  the  functionaries  to  administer  those  powers 
in  the  several  departments,  and  the  manner  in  which  they 
shall  be  held  accountable  for  their  conduct  in  the  adminis- 
tration. In  thus  forming  and  establishing  their  government, 
the  people  act  in  their  sovereign  capacity,  and  in  that  capa- 


368  APPENDIX. 

city  are  the  source  of  all  power  in  government.  But  they 
have  provided,  that  this  their  sovereign  power  shall  there- 
after remain  dormant,  until  again  called  into  action  upon 
the  same  subject,  the  constitution,  and  that  only  on  the  oc- 
casions, and  in  the  manner  which  they  have  prescribed.  In 
the  mean  time  it  is,  as  it  were,  non-existent.  The  govern- 
ment thus  instituted  and  administered,  agreeably  to  the  pro- 
visions of  the  constitution,  is  made  supreme  over  the  people, 
who  now  no  longer  act  as  such,  but  as  individuals,  sub- 
ordinate to  the  government  by  their  own  consent.  There 
is,  therefore,  no  absurdity  in  the  case,  that  the  people  should, 
one  and  all,  become  subject  in  their  individual  capacity  to  the 
government,  which  they  have  instituted  or  created  in  their 
united  and  aggregate  capacity.  Indeed,  if  we  reject  this 
reasoning,  we  must  necessarily  resort  to  the  doctrine  of  the 
divine  right  of  sovereignty  ;  nothing  short  of  this  can  establish 
the  authority  of  any  government.  This  reasoning  applies  as 
well  to  the  several  states  under  the  government  as  to  people 
under  a  government  of  a  more  simple  form ;  for  let  the 
several  states  be  considered  as  parties  to  the  compact,  form- 
ing the  constitution  of  the  general  government,  each  state 
was  undeniably  made  a  party  by  the  act  of  the  sovereign 
people  of  the  state,  the  government  of  which  is  the  crea- 
ture of  that  people,  and  the  act  of  the  government  or  state, 
if  so  empowered  to  act,  is  in  effect  the  act  of  the  people 
and  binding  only  as  such.  If,  then,  the  people  of  the  several 
states  have,  themselves,  or  through  the  agency  of  their  sev- 
eral governments,  by  concurrenl  acl  created  another  govern- 
ment, that  government  is  the  creature  of  the  whole,  as  the 
government  of  each  state  is  the  creature  of  its  separate  and 


APPENDIX.  369 

distinct  people  ;  and  each  people  have  the  poAver  over  the 
creature  they  have  made,  and  the  right  to  place  it  in  such 
relation  to  the  creature,  made  by  the  whole  as  they  may 
please,  and  in  such  degree  of  subordination,  and  for  such 
purposes  as  they  shall  deem  most  conducive  to  their  inter- 
ests, and  the  interests  of  all  the  parties.  Surely  this  is  not 
to  make  the  creature  greater  than  the  Creator,  but  directly  the 
contrary.  I  will  add,  that  the  subordination  of  the  several 
states  to  the  national  government  is  only  quoad  hoc,  within 
the  limits  of  the  powers  given  to  that  government,  and  to  the 
end  for  which  those  powers  were  given.  If  I  could  find 
another  word  in  the  language  less  offensive  to  state  pride 
than  the  word  subordinate,  thus  qualified,  to  express  the  re- 
lation in  which  the  state  governments  stand  as  it  respects 
the  general  government,  I  should  readily  have  adopted  it ; 
but  I  can  find  none  that  will  so  correctly  express  that  rela- 
tion as  it  is  determined  by  the  constitution  ;  and  I  consider  it 
as  a  matter  of  great  consequence  to  form  a  correct  opinion 
upon  the  subject. 

In  respect  to  the  constitutional  question,  Mr.  Calhoun 
says,  "  In  order  to  understand  more  fully  the  difficulty  of 
adjusting  this  unhappy  contest  on  any  other  ground,  it  may 
not  be  improper  to  present  a  general  view  of  the  constitu- 
tional objections,  that  it  may  be  clearly  seen,  how  hopeless 
it  is  to  expect  that  it  can  be  yielded  by  those  who  have  cm- 
braced  it.  They  believe  that  all  the  powers  vested  by  the 
constitution  in  congress,  are  not  only  restricted  by  the  limi- 
tation imposed,  but  also  by  the  nature  and  object  of  the 
powers  themselves.  Thus,  though  the  power  to  impose 
duties  and  imposts  be  granted  in  general  terms  without  any 


370  APPENDIX. 

other  express  limitation,  but  that  they  shall  be  equal,  and  no 
preference  shall  be  given  (by  any  regulation  of  commerce 
or  revenue)  to  the  ports  of  one  state  over  those  of  another, 
yet  as  being  a  portion  of  the  taxing  power,  given  with  the 
view  of  raising  revenue,  it  is,  from  its  nature,  restricted  to 
that  object,  as  much  so,  as  if  the  constitution  had  expressly 
so  limited  it,  and  that  to  use  it  to  effect  any  other  purpose, 
not  specified  in  the  constitution,  is  an  infraction  of  the  instru- 
ment, in  its  most  dangerous  form,  an  infraction  by  perver- 
sion, more  easily  made  and  more  difficult  to  resist  than  any 
other.  The  same  view  is  believed  to  be  applicable  to  the 
power  of  regulating  commerce  as  well  as  all  the  other 
powers."  This  does  not  differ  materially  from  the  rule  of 
construction  adopted  by  the  supreme  court,  as  laid  down  in 
Sergeant's  Constitutional  Law  :  "In  the  constitution  of  the 
United  States,  the  powers  of  government  are  restricted  to 
certain  objects,  and  the  incidental  powers  restricted  to  such 
as  are  necessary,  (that  is,  expedient)  to  the  powers  ex- 
pressed." This  is  certainly  correct  as  a  general  rule  ;  the 
principal  difficulty  is  found  in  making  a  correct  application 
of  the  rule  in  specific  cases. 

In  the  present  case  it  becomes  an  important  question,  what 
is  the  nature  and  object  of  the  taxing  power,  and  the  power 
to  regulate  commerce  ?  What  was  intended  to  be  compre- 
hended in  the  terms  and  expressions  used,  in  the  grant  of 
tlio-:'  powers,  by  the  framcrs  of  the  constitution  ?  For  it 
will,  and  must  be  conceded,  that  these  articles  ought  now  to 
be  understood  as  they  were  then  understood,  and  construed, 
to  embrace  the  objects  then  supposed  and  intended  to  be 
embraced  in  them  as  they  are  expressed.     Mr.   Calhoun's 


APPENDIX.  371 

objection  seems  to  be  this,  that  a  power  given  by  the  consti- 
tution is  restricted  in  all  cases  solely  to  the  object  of  that 
power.  If  the  object  be  not  expressed,  we  must  look  for  it 
in  the  nature  of  the  power.  If  we  mean  by  the  nature  of  the 
power  its  fitness  for  a  certain  purpose,  or  for  the  attainment 
of  a  certain  object,  then  the  nature  of  the  taxing  power  con- 
sists in  that  fitness  —  its  fitness  for  raising  a  revenue.  This 
is  the  principal  and  substantive  object ;  but  is  it  necessarily 
confined  to  this  object  ?  Suppose  there  is  found  in  it  also  a 
fitness  to  become  an  auxiliary  to  some  other  principal  powers, 
to  afford  the  necessary  and  proper  means  for  attaining  the 
object  of  that  power,  does  the  former  belong  to  its  nature, 
the  latter  not  ?  These  observations  apply  forcibly  to  the  two 
powers  of  which  we  have  been  speaking.  The  power  to 
regulate  commerce  it  is  conceded  contains  a  grant,  although 
not  expressed  of  all  the  incidental  powers  necessary  and 
proper  to  carry  the  principal  powers  into  effect  —  a  com- 
mand of  the  means  necessary  and  proper  to  the  attainment 
of  its  object.  These  means  have  been  found  in  the  power 
of  taxation  granted  as  a  principal  power  for  the  purpose  of 
revenue.  The  government  have  constantly  used  these  means 
in  regulating  commerce,  by  imposing  duties  for  the  purpose 
of  retaliating  or  counterruling  restrictions,  on  our  trade  by 
foreign  nations.  I  will  mention  but  one  instance  —  the  duty 
on  foreign  tonnage.  But  let  us  examine  the  subject  a  little 
more  closely,  and  in  detail.  As  before  suggested,  in  order 
to  ascertain  correctly  the  extent  of  the  powers  granted,  we 
must  ascertain  how  the  terms  and  expressions  used  in  the 
grant,  were  understood  by  the  Cramers  of  the  constitution. 
For  in  that  sense  and  no  other,  ought  they  now  to  be  under- 


312  APPENDIX. 

stood.  At  the  time  of  forming  and  adopting  the  constitu- 
tion, the  regulation  of  commerce  by  duties  and  imposts,  or 
in  other  words,  by  means  of  a  tariff,  had  become  familiar  to 
the  people  of  this  country.  It  had  been  in  use  for  ages  in 
the  English  nation,  from  whom  we  are  descended,  and  from 
whom  we  have  derived  our  language,  our  legal,  civil,  politi- 
cal and  commercial  vocabulary.  With  them  the  numerous 
duties  laid  for  the  protection  of  trade,  the  encouragement  of 
manufacture,  and  of  every  branch  of  domestic  industry,  have 
been  in  the  language  of  parliament,  of  all  their  statesmen  and 
writers  on  political  economy,  ever  denominated  regulations 
of  commerce.  The  disputes  between  the  colonies  and  the 
mother  country,  Avho  claimed  the  right  of  regulating  their 
commerce,  and  of  imposing  taxes  and  duties,  not  only  as  the 
means  of  enforcing  such  regulations,  but  for  the  purpose  of 
raising  a  revenue,  rendered  the  terms  "  regulation  of  com- 
merce" and  to  regulate  commerce,  familiar  to  the  people  of 
this  country,  and  that  in  connection  with  the  imposition  of 
duties  as  the  necessary  means.  And  this  connection  had 
become  settled  and  fixed  in  the  general  mind  by  the  frequent 
and  repeated  agitation  of  the  subject  in  the  public  papers  of 
the  times,  and  in  all  public  bodies  throughout  the  colonies  ; 
and  the  more  so,  as  the  colonists  took  a  distinction  between 
duties  imposed  upon  them,  for  the  purpose  of  regulating 
their  commerce  with  the  mother  country,  including  the  pro- 
tection and  encouragement  of  her  manufactures,  and  those 
duties  that  were  imposed  merely  for  the  purpose  of  revenue. 
The  former  they  allowed  to  be  constitutional,  as  the  neces- 
sary concomitant  of  a  constitutional  power,  the  power  to 
regulate  commerce  ;    the  latter  they  denied.     In  this  con- 


APPENDIX.  373 

nection  the  term  was  understood  and  used  by  the  framers  of 
the  constitution  of  the  United  States,  as  Ave  are  assured  by 
Mr.  Madison,  who  was  a  member,  and  one  of  the  most 
efficient  members  of  the  general  convention.  And  certainly 
his  personal  knowledge  on  the  subject,  his  general  informa- 
tion on  whatever  relates  to  our  government,  render  him  the 
most  competent  judge  ;  and  his  reputation  for  integrity  the 
highest  authority  now  living.  By  him  we  are  informed,  that 
the  power  to  regulate  commerce  was  then  understood  by  all 
to  unite  with  it  a  powTer  to  protect  and  encourage  domestic 
manufactures,  by  a  tariff  of  duties,  and  was  one  prominent 
view  with  which  it  was  inserted  in  the  constitution.  "We 
further  find  by  unquestionable  documents,  that  such  was  the 
view  taken  of  it  in  the  state  conventions,  as  appears  from 
their  debates,  as  far  as  they  have  been  made  public.  It  was 
a  powerful  argument  in  favor  of  adopting  the  present  consti- 
tution, by  which  was  given  up  that  power  before  vested  in 
the  several  states,  which,  from  a  want  of  concert,  had  been 
found  wdiolly  ineffectual ;  so  that  if  they  were  deceived  in 
this,  if  the  power  was  not  transferred  to  the  general  govern- 
ment, it  no  longer  existed  anywhere  in  the  union  —  an  in- 
stance not  to  be  found  in  any  other  nation  on  earth.  Such 
also  was  the  understanding  of  the  first  congress  under  the 
present  constitution,  and  which  was  composed  of  many  who 
had  been  members  of  the  general  and  the  state  conventions, 
that  formed  and  adopted  the  constitution.  Among  the  first 
which  they  passed  was  one  in  execution  of  this  power,  an 
act  imposing  duties,  and  reciting  in  the  preamble  that  those 
duties  were  laid,  among  other  things,  for  the  purpose  of  pro- 
tecting manufactures.  Nor  docs  it  appear,  from  the  journals 
47 


374  APPENDIX. 

or  debates  published  at  the  time,  that  there  arose  even  the 
surmise  of  an  objection  to  the  prominent  assertion  of  the 
power,  so  made,  in  its  fust  exercise  by  congress.  Not  a  ses- 
sion has  since  passed  without  some  question  being  agitated 
upon  the  subject.  Various  objections  have,  from  time  to 
time,  been  urged  against  the  policy  or  expediency  of  par- 
ticular duties,  or  of  the  protection  to  be  afforded  to  certain 
branches  of  manufactures  —  and  in  some  instances  to  the 
general  policy.  But  I  cannot  find  that  any  objection  was 
ever  made  to  the  right  until  1820,  more  than  thirty  years 
from  the  commencement  of  its  exercise,  when,  for  the  first 
time,  on  a  tariff  question  then  under  discussion,  the  constitu- 
tional power  and  right  of  congress  on  this  subject  was  de- 
nied, though  but  feebly  supported.  The  strong  opposition 
that  has  since  continued,  was  not  formed  until  1824.  It  is 
worthy  of  remark,  that  the  members  in  congress  from  the 
southern  states,  particularly  from  South  Carolina,  were,  al- 
most to  a  man,  zealous  supporters  of  the  tariff  of  1816  —  and 
none  more  prominent,  or  who  brought  to  the  subject  more 
talents  than  the  present  writer,  Mr.  Calhoun.  The  act  which 
was  then  passed,  and  principally  through  that  influence,  was 
the  entering  wedge  of  the  present  tariff  system.  But  he  now 
excuses  himself  by  saying,  that  the  constitutional  question 
was  not  raised  or  discussed  at  that  time.  This  is  undoubt- 
edly true.  But  it  is  strange,  passing  strange,  that,  to  a 
statesman  of  his  comprehensive  mind  and  acknowledged 
talents,  the  unconstitutionality  of  this  power  in  exercise, 
which  now  appears  to  him  so  prominent,  should  never  have 
occurred  before. 

To  enlarge  further  on  this  point  is  unnecessary.     It  does 


APPENDIX.  375 

appear  to  me  that  the  reasons  'here  exhibited  have  esta- 
blished, in  its  fullest  extent,  the  constitutional  power  of  con- 
gress on  this  subject,  and,  to  use  a  language  equally  strong, 
with  that  of  the  writer,  if  it  be  possible  for  reason  to  settle 
a  question  where  the  passions  and  interests  of  men  are  en- 
gaged, it  has  forever  settled  the  point,  and  placed  it  beyond 
the  reach  of  controversy. 


Extracts  from  the  journals  of  the  first  session  of  the  first  con- 
gress, and  selections  from  the  debates  on  the  first  tariff  act, 
passed  on  the  fourth  of  July,  1789. 

DUTY    ON    STEEL. 

"  Mr.  Lee  moved  to  strike  out  this  duty  ;  observing  that 
the  consumption  of  steel  was  very  great,  and  essentially 
necessary  to  agricultural  improvements.  He  did  not  be- 
lieve any  gentleman  would  contend,  that  enough  of  this 
article,  to  answer  consumption,  could  be  manufactured  in  any 
part  of  the  union ;  hence  it  would  operate  as  an  oppress- 
ive, though  an  indirect,  tax  upon  agriculture  ;  and  any  tax, 
whether  direct  or  indirect,  upon  this  interest,  at  this  junc- 
ture, would  be  unwise  and  impolitic." 

"  Mr.  Tucker  joined  the  gentleman  in  his  opinion,  ob- 
serving, that  it  was  impossible  for  some  states  to  get  it  but 
by  importation  from  foreign  countries.  He  conceived  it 
more  deserving  a  bounty  to  increase  the  quantity,  than  an 
impost  which  would  lessen  the  consumption  and  make  it 
dearer  also." 

"  Mr.  Clymer  replied,  that  the  manufacture  of  steel,  in 
America,  was  rather  in  its  infancy  ;  but  as  all  the  materials 
necessary  to  make  it  were  the  produce  of  almost  every  state 


376  APPENDIX. 

in  the  union,  and  as  the  manufacture  was  already  established 
and  attended  with  considerable  success,  he  deemed  it  prudent 
to  emancipate  our  country  from  the  manacles  in  which  she 
was  held  by  foreign  manufacturers.  A  furnace  in  Phila- 
delphia, with  a  very  small  aid  from  the  legislature  of  Penn- 
sylvania, made  three  hundred  tons  in  two  years,  and  now 
makes  at  the  rate  of  two  hundred  and  thirty  tons  annually, 
and  with  a  little  further  encouragement,  would  supply  enough 
for  the  consumption  of  the  union.  He  hoped,  therefore, 
gentlemen  would  be  disposed,  under  these  considerations,  to 
extend  a  degree  of  patronage  to  a  manufacture  which,  a  mo- 
ment's reflection  would  convince  them  was  highly  deserving 
protection." 

"  Mr.  Madison,  thought  the  object  of  selecting  this  article 
to  be  solely  the  encouragement  of  the  manufacturer,  and  not 
revenue ;  for  on  any  other  consideration,  it  would  be  more 
proper,  as  observed  by  the  gentleman  from  Carolina,  (Mr, 
Tucker,)  to  give  a  bounty  on  the  importation.  It  was  so 
materially  connected  with  the  improvement  of  agriculture 
and  other  manufactures,  that  he  questioned  its  propriety 
even  on  thai  score.  A  duty  would  tend  to  depress  many 
mechanic  arts  in  the  proportion  that  it  protected  this ;  he 
thought  it  best  to  reserve  this  article  to  the  non-enumerated 
ones,  where  it  would  be  subject  to  a  five  per  ccnl  ad  valo- 
rem." 

"  Mr,  Fitsimons.  Some  states  were,  from  local  circum- 
stances, better  situated  to  carry  on  the  manufacture  than 
others,  and  would  derive  some  little  advantage  <>u  this  ac- 
count in  the  commencement,  of  the  business.  But  laying 
aside  local  distinctions,  whal  operates  to  the  benefit  of  one 


APPENDIX.  377 

part,  in   establishing  useful  institutions,  will  eventually  ope- 
rate to  the  advantage  of  the  whole." 

"  Suppose  five  shillings  per  hundred  weight  was  imposed, 
it  might  be,  as  stated,  a  partial  duty,  but  would  not  the  evil 
be  soon  overbalanced  by  the  establishment  of  such  an  important 
manufacture  ?  —  a  great  and  principal  manufacture  for  every 
agricultural  country,  but  particularly  useful  in  the  United 
States." 

ON    BEER,    ALE    AND    PORTER. 

;i  Mr.  Fitzsimpns  meant  to  make  an  alteration  in  this  arti- 
cle, by  distinguishing  beer,  ale  and  porter,  imported  in  casks, 
from  what  was  imported  in  bottles.  He  thought  this  manu- 
facture was  highly  deserving  of  encouragement.  If  the 
morals  of  the  people  were  to  be  improved  by  what  entered 
into  their  diet,  it  would  be  prudent  in  the  national  legisla- 
ture to  encourage  the  manufacture  of  malt  liquors.  The 
small  protecting  duties  laid  in  Pennsylvania  had  a  great 
effect  towards  the  establishment  of  breweries  ;  they  no  longer 
imported  this  article,  but,  on  the  contrary,  exported  con- 
siderable quantities,  and,  in  two  or  three  years,  with  the  fos- 
tering aid  of  government,  would  be  able  to  furnish  enough 
for  the  whole  consumption  of  the  United  States.  He  moved 
nine  cents  per  gallon." 

"  Mr.  Lawrence  seconded  the  motion.  He  would  have 
this  duty  so  high  as  to  give  a  decided  preference  to  Ameri- 
can beer  ;  it  would  tend  also  to  encourage  agriculture,  be- 
cause the  malt  and  hops  consumed  in  the  manufacture  were 
the  produce  of  our  own  grounds." 

"  Mr.  Sinnickson  declared  himself  a  friend  to  this  manu- 
facture, and   thought  if  the  duty  was  laid  high   enough  to 


378  APPENDIX. 

effect  a  prohibition,  the  manufacture  would  increase,  and  of 
consequence  the  price  be  lessened.  He  considered  it  of  im- 
portance, inasmuch  as  the  materials  were  produced  in  the 
country,  and  tended  to  advance  the  agricultural  interest." 

"  Mr.  Madison  moved  to  lay  an  impost  of  eight  cents  on 
all  beer  imported.  He  did  not  think  this  sum  would  give  a 
monopoly,  but  hoped  it  would  be  such  an  encouragement  as  to 
induce  the  manufacture  to  take  deep  root  in  every  state  in 
the  union ;  in  this  case,  it  would  produce  the  collateral  good 
hinted  at  by  the  gentleman  from  New  Jersey,  which,  in 
his  opinion,  was  an  object  well  worthy  of  being  attended 
to." 

ON    CANDLES. 

"  Mr.  Fitzsimons  moved  to  lay  a  duty  of  two  cents  on  all 
candles  of  tallow,  per  pound." 

"  Mr.  Tucker  observed,  that  some  states  were  under  the 
necessity  of  importing  considerable  quantities  of  this  article, 
while  others  had  enough,  and  more  than  enough,  for  their 
own  consumption  ;  therefore  the  burden  would  be  prac- 
tically borne  by  such  states." 

"  Mr.  Fitzsimons.  The  manufacture  of  candles  is  an  im- 
portant manufacture,  and  far  advanced  towards  perfection. 
I  have  no  doubt  but,  in  a  few  years,  we  shall  be  able  to  fur- 
nish sufficient  to  supply  the  consumption  for  every  part  of 
the  continent.  In  Pennsylvania  we  have  a  duty  of  two 
pence  per  pound  ;  and  under  the  operation  of  this  small 
encouragement  the  manufacture  h;is  gained  considerable 
strength.  We  no  longer  import  candles  from  Ireland  or 
England,  of  whom,  a  few  years  ago,  we  took  considerable 
quantities;  the  necessity  of  continuing  those  encouragements 


APPENDIX.  379 

which  the  state  legislatures  have  deemed  proper,  exists  in  a 
considerable  degree ;  therefore  it  will  be  politic  in  the  gov- 
ernment of  the  United  States  to  continue  such  duties  till  their 
object  is  accomplished." 

"  Mr.  Boudinot  apprehended,  that  most  states  imported 
considerable  quantities  of  this  article  from  Russia  and  Ire- 
land ;  he  expected  they  would  be  made  cheaper  than  they 
could  be  imported,  if  a  small  encouragement  was  held  out 
by  the  government,  as  the  materials  were  to  be  had  in  abun- 
dance in  our  country." 

"  Mr.  Lawrence  thought  that  if  candles  were  an  object  of 
considerable  importation,  they  ought  to  be  taxed  for  the  sake 
of  obtaining  revenue  ;  and  if  they  were  not  imported  in 
considerable  quantities,  the  burden  upon  the  consumer  would 
be  small,  while  it  tended  to  cherish  a  valuable  manufac- 
ture." 

ox   COAL. 

"  Mr.  Bland,  of  Virginia,  informed  the  committee  that 
there  were  mines  opened  in  Virginia,  capable  of  supplying 
the  whole  of  the  United  States ;  and  if  some  restraint  was 
laid  on  the  importation  of  foreign  coal,  these  mines  might 
be  worked  to  advantage.  He  thought  it  needless  to  insist 
upon  the  advantages  resulting  from  a  colliery,  as  a  supply 
for  culinary  and  mechanical  purposes,  and  as  a  nursery 
to  train  up  seamen  for  a  navy.  He  moved  three  cents  a 
bushel." 

OX     HEMP. 

"  Mr.  Moore  declared  the  southern  states  were  well  calcu- 
lated for  the  cultivation  of  hemp,  and,  from  certain  circum- 
stances, well  inclined  thereto.     He  conceived  it  the  duty  of 


380  APPENDIX. 

the  committee  to  pay  as  much  respect  to  the  encouragement 
and  protection  of  husbandry,  (the  most  important  of  all  in- 
terests in  the  United  States,)  as  they  did  to  manufactures." 

"  Mr.  Scott  stated  a  fact  or  two  ;  being,  perhaps,  as  well 
acquainted  with  the  western  country  as  any  member  of  the 
committee.  The  lands  along  the  frontiers,  he  could  assure 
the  committee,  were  well  calculated  for  the  cultivation  of 
this  plant ;  it  is  a  production  that  will  bear  carriage  by  land 
better  than  any  other,  tobacco  not  excepted.  He  believed 
an  encouragement  of  the  kind  now  moved  for,  would  bring, 
in  a  year  or  two,  vast  quantities  from  that  country,  at  little 
expense,  to  Philadelphia,  even  from  the  waters  of  the  Ohio; 
the  inhabitants  expect^  some  encouragement,  and  will  be 
grateful  for  it." 

"Mr.  White.  —  If  the  legislature  take  no  notice  of  this 
article,  the  people  will  be  led  to  believe  it  is  not  an  object 
worthy  of  encouragement,  and  the  spirit  of  cultivation  will 
be  damped  ;  whereas,  if  a  small  duty  only  was  laid,  it  might 
point  out  to  them  that  it  was  desirable,  and  would  induce  an 
increase  of  the  quantity." 

"  Mr.  Moore.  —  By  the  encouragement  given  to  manufac- 
tures, you  raise  them  in  price,  while  a  competition  is  de- 
stroyed, which  tended  to  the  advantage  of  agriculture.  He 
thought  the  manufacturing  interest  ought  not  to  stand  in  the 
way  of  the  other ;  but,  as  the  committee  had  agreed  to  give 
it  encouragement,  he  hoped  the  other  would  receive  its 
share  of  legislative  support." 

<:  Mr.  Burke  thought  it  proper  to  suggest  to  the  com- 
mittee, what  might  be  the  probable  effect  of  the  proposed 
measure,  in  the  state  he  represented,  (South  Carolina,)  and 


APPENDIX.  381 

the  adjoining  one,  (Georgia.)  The  staple  products  of  that 
part  of  the  Union  were  hardly  worth  cultivation,  on  account 
of  then  fall  in  price  ;  the  planters  are  therefore  disposed  to 
pursue  some  other.  The  lands  are  certainly  well  adapted  to 
the  growth  of  hemp,  and  he  had  no  doubt  but  its  culture 
would  be  practised  with  attention.  Cotton  is  likewise  in 
contemplation  among  them,  and,  if  good  seed  could  be  pro- 
cured, he  hoped  it  might  succeed.  But  the  low,  strong  rice 
lands  would  produce  hemp  in  abundance ;  many  thousand 
tons,  even  this  year,  if  it  was  not  so  late  in  the  season.  He 
liked  the  idea  of  laying  a  low  duty  now,  and  encouraging  it 
against  the  time  when  a  supply  might  be  had  from  our  own 
cultivation." 

ON    GLASS. 

"  Mr.  Carroll  moved  to  insert  window  and  other  glass. 
A  manufacture  of  this  article  Avas  begun  in  Maryland,  and 
attended  with  considerable  success  ;  if  the  legislature  were 
to  grant  a  small  encouragement,  it  would  be  permanently 
established.  The  materials  were  to  be  found  in  the  country 
in  sufficient  quantities  to  answer  the  most  extensive  de- 
mands." 

ON    PAPER. 

"  Mr.  Clymer  informed  the  house,  that  the  manufacture  of 
paper  was  an  important  one  ;  and,  having  grown  up  under 
legislative  encouragement,  it  will  be  wise  to  continue  it" 

ON    WOOL    CARDS. 

"  Mr.  Ames  introduced  wool  cards,  with  observing  that 
they  were  manufactured  to  the  eastward,  as  good  and  as 
cheap  as  the  imported  ones." 

"  Mr.  Clymer  mentioned  that,   in  the  state  of  Pennsyl- 

18 


382  APPENDIX. 

vania,  llic  manufacture  "was  carried  to  great  perfection,  and 
enough  could  be  furnished  to  supply  the  demand.  A  duty 
of  fifty  cents  per  dozen  was  imposed  on  wool  cards." 

"  Mr.  Bland,  of  Virginia,  thought  that  very  little  revenue 
was  likely  to  be  collected  on  the  article  of  beef,  let  the  duty 
be  more  or  less  ;  and,  as  it  was  to  be  had  in  sufficient  quan- 
tities within  the  United  States,  perhaps  a  tax,  amounting  to  a 
proJtibition,  would  be  proper"  It  was  rejected,  as  totally 
unnecessary,  "  nothing  being  to  be  apprehended  from  rival- 
ship." 

ON    MANUFACTURED    TOBACCO. 

"  Mr.  Sherman  moved  six  cents,  as  he  thought  the  duly 
ought  to  amount  to  a  prohibition.     This  was  agreed  to." 


No.  VII. 
LETTER 

FROM   GOV.    CHITTENDEN   TO  GEN.   WASHINGTON, 

UPON    THE 

POLICY    AND    COURSE    OF    VERMONT 

IN     THE 

REVOLUTIONARY    WAR. 


LETTER. 


STATE      OF      VERMONT. 

Arlington,  Nov.  14,  1781. 
Sir,  —  The  peculiar  situation  and  circumstances  with 
which  this  state,  for  several  years  last  past,  has  been  at- 
tended, induces  me  to  address  your  Excellency,  on  a  subject 
which  nearly  concerns  her  interests,  and  may  have  its  influ- 
ence on  the  common  cause  of  the  states  of  America.  Plac- 
ing the  highest  confidence  in  your  Excellency's  patriotism 
in  the  cause  of  liberty,  and  disposition  to  do  right  and  justice 
to  every  part  of  America,  (who  have  by  arms  supported  their 
rights  against  the  knvless  power  of  Great  Britain,)  I  herein 
transmit  the  measures  by  which  this  state  has  conducted  her 
policy,  for  the  security  of  its  frontiers  ;  and,  as  the  design 
and  end  of  it  was  set  on  foot,  and  has  ever  since  been  pro- 
secuted on  an  honorable  principle,  (as  the  consequences  will 
fully  evince,)  I  do  it  with  full  confidence  that  your  Excel- 
lency will  not  improve  it  to  the  disadvantage  of  this  truly 
patriotic,  suffering  state ;  although  the  substance  has  already 
been  communicated  by  Capt.  Ezra  Hicock,  employed  by 
Major  General   Lincoln,    by    your  Excellency's  particular 


38G  APPENDIX. 

direction,  and  who  arrived  here  with  the  resolutions  of  con- 
gress of  the  seventh  day  of  August  last,  which  appeared  in 
some  measure  favorable  to  this  state.  I  then  disclosed  to 
him  the  measures  this  state  had  adopted  for  her  security, 
which  I  make  no  doubt  has  by  him  been  delivered  your 
Excellency.  And  though  I  do  not  hesitate  that  you  arc  well 
satisfied  of  tile  real  attachment  of  the  government  of  this 
state  to  the  common  cause,  I  esteem  it,  nevertheless,  my 
duty  to  this  state,  and  the  common  cause  at  large,  to  lay 
before  your  Excellency,  in  writing,  the  heretofore  critical 
situation  of  this  state,  and  the  management  of  its  policy, 
that  it  may  operate  in  your  Excellency's  mind,  as  a  barrier 
against  clamorous  aspersions  of  its  numerous  (and,  in  many 
instances,  potent)  adversaries.  It  is  the  misfortune  of  this 
state  to  join  on  the  frontier  of  Quebec,  and  the  waters  of 
the  Lake  Champlain,  which  affords  an  easy  passage  for  the 
enemy  to  make  a  descent  with  a  formidable  army  on  its 
frontiers,  and  into  the  neighborhood  of  the  several  states  of 
New  York,  New  Hampshire,  and  Massachusetts,  who  have 
severally  laid  claims,  in  part  or  in  whole,  to  this  state,  and 
who  have  used  every  art  which  they  could  devise  to  divide 
her  citizens,  to  set  congress  against  her,  and,  finally,  to 
overturn  the  government,  and  share  its  territory  among 
them.  The  repeated  applications  of  this  state  to  the  con- 
gress of  the  United  States,  to  be  admitted  into  the  federal 
union  with  them,  upon  the  liberal  principles  of  paying  a  just 
proportion  of  the  expenses  of  the  war  with  Great  Britain, 
have  been  rejected,  and  resolutions  passed,  ex  parte,  tending 
to  create  schisms  in  the  state,  and  thereby  embarrass  its 
efforts  in  raising  men  and  money   for  the   defence  of  lur 


APPENDIX.  '        387 

frontiers,  and  discountenancing  the  very  existence  of  the 
state.  Every  article  belonging  to  the  United  States,  even 
to  pickaxes  and  spades,  has  been  by  the  commissioners  or- 
dered out  of  this  state,  at  a  time  when  she  was  erecting  a 
line  of  forts  on  her  frontiers.  At  the  same  time  the  state  of 
New  York  evacuated  the  post  of  Sheensborough,  for  the 
avowed  purpose  of  exposing  this  state  to  the  ravages  of  the 
common  enemy. 

The  British  officers  in  New  York,  being  acquainted  with 
the  public  disputes  between  this  and  the  claiming  states,  and 
between  congress  and  this  state,  made  overtures  to  Gen. 
Allen,  in  a  letter,  projecting  that  Vermont  should  be  a 
colony  under  the  crown  of  Great  Britain,  endeavoring,  at 
the  same  time,  to  draw  the  people  of  Vermont  into  their  in- 
terest. The  same  day  Gen.  Allen  received  this  letter, 
(which  was  in  August,  1780,)  he  laid  it  before  me  and  my 
council,  who,  under  the  critical  circumstances  of  the  state, 
advised  that  no  answer,  either  oral  or  written,  should  be 
returned,  and  that  the  letter  be  safely  deposited  till  further 
consideration :  to  which  Gen.  Allen  consented.  A  few 
months  after,  he  received  a  second  letter  from  the  enemy, 
and  the  same  council  advised  that  Gen.  Allen  should  send 
both  letters  to  congress,  (inclosed  in  a  letter  under  his  signa- 
ture,) which  he  did,  in  hopes  that  congress  would  admit 
Vermont  into  union  ;  but  they  had  not.  the  desired  effect. 

In  the  fall  of  the  year  1780,  the  British  made  a  descent  up 
the  Lake  Champlain,  and  captured  the  forts  George  and 
Ann,  and  appeared  in  force  on  the  lake.  This  occasioned 
the  militia  of  this  state,  most  generally,  to  go  forth  to  de- 
fend it.     Thus  the  militia  wire  encamped  against  the  enemy 


388 


APPENDIX. 


near  six  weeks,  when  Gen.  Allen  received  a  flag  from  them, 
with  an  answer  to  my  letter,  dated  the  preceding  July,  to 
Gen'.  Haldemand,  on  the  subject  of  an  exchange  of  prisoners. 
This  flag  was  delivered  to  Gen.  Allen,  from  the  command- 
ing officer  of  the  enemy,  who  were  then  at  Crown  Point, 
with  proposals  for  a  truce  with  the  state  of  Vermont,  dur- 
ing the  negotiating  the  exchange  of  prisoners.  Gen.  Allen 
sent  back  a  flag  of  his  to  the  commanding  officer  of  the 
British,  agreeing  to  the  truce,  provided  he  would  extend 
the  same  to  the  frontier  parts  of  the  state  of  New  York, 
which  was  complied  with,  and  a  truce  took  place,  which 
lasted  about  three  weeks.  It  Avas  chiefly  owing  to  the  mili- 
tary prowess  of  the  militia  of  this  state,  and  the  including 
the  state  of  New  York  in  the  truce,  that  Albany  and  Sche- 
nectady had  not  fell  a  sacrifice  to  the  ambition  of  the  enemy 
that  campaign. 

Previous  to  the  retreating  of  the  enemy  into  winter  quar- 
ters, Col.  Allen  and  Maj.  Fay  were  commissioned  to  nego- 
tiate the  proposed  exchange  of  prisoners.  They  proceeded 
so  far  as  to  treat  with  the  British  commissioners  on  the  sub- 
ject of  their  mission,  during  which  time  they  were  inter- 
changeably entertained  with  politics,  which  they  treated  in 
an  affable  manner,  as  I  have  been  told,  but  no  cartel  was 
settled  ;  and  the  campaign  ended  without  the  effusion  of 
blood. 

The  cabinet  council,  in  the  course  of  the  succeeding 
winter,  finding  that  the  enemy  in  Canada  were  about 
seven  thousand  strong,  and  thai  Vermont  must  needs  be 
their  object  the  ensuing  campaign,  circular  letters  were 
therefore    sent    from    the    supreme    executive    authority   of 


APPENDIX.  389 

this  state  to  the  claiming  states  before-mentioned,  demand- 
ing of  them  to  relinquish  their  claims  to  this  state,  and 
inviting  them  to  join  in  a  solid  union  and  confederation 
against  the  common  enemy.  Letters  were  also  sent  to 
your  Excellency  and  to  the  states  of  Connecticut  and  Rhode 
Island ;  any  [one]  of  these  letters  stated  the  extreme  cir- 
cumstances of  this  state,  and  implored  their  aid  and  alli- 
ance, giving  them  withal  to  understand,  that  it  was  out  of 
the  power  of  this  state  to  lay  in  magazines  and  support  a 
body  of  men  sufficient  to  defend  this  state  against  the  force 
of  the  enemy.  But  to  those  letters  there  has  been  no  man- 
ner of  answer  returned. 

From  all  which  it  appeared  that  this  state  was  devoted  to 
destruction  by  the  sword  of  the  common  enemy.  It  ap- 
peared to  be  the  more  unjustifiable  that  the  state  of  Ver- 
mont should  be  thus  forsaken,  inasmuch  as  her  citizens 
struck  the  first  offensive  blow  against  British  usurpation  by 
putting  the  continent  in  possession  of  Ticonderoga,  and 
more  than  two  hundred  pieces  of  cannon,  with  Crown 
Point,  St.  John's,  and  all  Lake  Champlain ;  their  exertions 
in  defeating  General  Carleton  in  his  attempts  to  raise  the 
siege  of  St.  Johns ;  their  assisting  in  penetrating  Canada ; 
their  valor  in  the  battle  at  Hubbenton,  Bennington,  and  the 
landing  near  Ticonderoga  ;  assisting  in  the  capture  of  Gen- 
eral Burgoyne,  and  by  being  the  principal  barrier  against 
the  power  of  the  enemy  in  Canada  ever  since. 

That  the  citizens  of  this  state  have,  by  nature,  an  equal 
right  to  liberty  and  independency  with  the  citizens  of  Amer- 
ica in  general  cannot  be  disputed,  and  that  they  have  merited 
it  from  the  United  States,  by  their  exertions  with  them,  in 
49 


390  APPENDIX. 

bringing  about  the  present  glorious  revolution,  is  as  evident 
a  truth  as  any  other  •which  respects  the  acquired  right  of  any 
community.  Generosity,  merit  and  gratitude,  all  conspire 
in  vindicating  the  independence  of  Vermont ;  but  notwith- 
standing the  arguments  which  have  been  exhibited  in  sundry 
pamphlets  in  favor  of  Vermont,  which  have  been  abundantly 
satisfactory  to  the  impartial  part  of  mankind,  it  has  been  in 
the  power  of  her  external  enemies  to  deprive  her  of  union, 
confederation,  or  any  equal  advantage  in  defending  them- 
selves against  the  common  enemy.  The  winter  being  thus 
spent  in  fruitless  attempts  to  form  alliances,  and  no  advan- 
tages were  procured  in  favor  of  this  state,  except  that  Mas- 
sachusetts withdrew  her  claim  on  condition  that  the  United 
States  would  concede  to  the  independence  of  Vermont ;  but 
that  if  they  would  not,  they  would  have  their  smack  at  the 
south  end  of  its  territory ;  still  New  York  and  New  Hamp- 
shire were  strenuously  opposed  to  the  independence  of  Ver- 
mont, and  every  stratagem  in  their  power  to  divide  and  sub- 
divide her  citizens  were  exerted,  imagining  that  their  influ- 
ence in  congress,  and  the  certain  destruction  (as  they  sup- 
posed) of  the  inhabitants  of  this  state  by  the  common  enemy, 
could  not  fail  of  finally  accomplishing  their  wishes. 

In  this  juncture  of  affairs,  the  cabinet  of  Vermont  pro- 
jected the  extension  of  their  claim  of  jurisdiction  upon  the 
stale  of  New  Hampshire  and  New  York,  as  well  to  quiet 
their  own  internal  divisions  occasioned  by  the  machinations 
of  those  two  governments,  as  to  make  them  experience  tin- 
evils  of  intestine  broils,  and  strengthen  this  stale  against 
insult.  The  legislature  accordingly  extended  their  jurisdic- 
tion to  the  eastward  of  Connecticut  River  to  the  old  Mason 


APPENDIX.  391 

line,  and  to  the  westward  to  Hudson  River.  But  in  the 
articles  of  union  referred  the  determination  of  the  boundary 
lines  of  Vermont  and  the  respective  claiming  states,  to  the 
final  decision  of  congress,  or  such  other  tribunal  as  might 
be  mutually  agreed  on  by  the  contending  governments. 
These  were  the  principal  political  movements  of  the  last 
winter.  The  last  campaign  opening  with  a  gloomy  aspect 
to  the  discerning  citizens  of  this  state,  being  destitute  of  ade- 
quate resources,  and  without  any  alliance,  and  that  from  its 
local  situation  to  Canada,  obliged  to  encounter  the  whole 
force  of  that  province,  or  give  up  its  claim  to  independence 
and  run  away. 

Vermont  being  thus  drove  to  desperation  by  the  injus- 
tice of  those  who  should  have  been  her  friends,  was  obliged 
to  adopt  policy  in  the  room  of  power  ;  and,  on  the  first  day 
of  May  last,  Colonel  Ira  Allen  was  sent  to  Canada,  to  fur- 
ther negotiate  the  business  of  the  exchange  of  prisoners, 
who  agreed  on  a  time  and  place,  and  other  particulars  re- 
lating to  the  exchange.  While  he  was  transacting  that  busi- 
ness, he  was  treated  with  great  politeness,  and  entertained 
with  political  matters,  which  necessity  obliged  him  to  humor 
in  that  easy  manner  that  might  serve  the  interests  of  this  state 
in  its  extreme  critical  situation,  and  that  its  consequences 
might  not  be  injurious  to  the  United  States.  The  plan  suc- 
ceeded. The  frontiers  of  this  state  were  not  invaded,  and 
Lord  George  Germain's  letter  wrought  upon  congress  and 
procured  that  from  them  which  the  public  virtue  of  this 
people  could  not. 

In  the  month  of  July  lasl,  Major  Joseph  Fay  was  sent  to 
the  British  shipping  on  Lake  Champlain,  who  completed 


392  APPENDIX. 

an  exchange  of  a  number  of  prisoners  who  were  delivered 
at  Sheensborough  in  September  last,  at  which  time  and  place 
Colonel  Ira  Allen  and  Major  Fay  had  a  conference  with  the 
British  commissioners,  and  no  damage  as  yet  had  occurred 
to  this  or  the  United  States  from  this  quarter.  And  in  the 
month  of  October  last,  the  enemy  appeared  in  force  at 
Crown  Point  and  Ticonderoga,  but  were  manoeuvred  out  of 
their  expedition,  and  were  returned  into  winter  quarters  in 
Canada  with  great  safety  ;  that  it  might  be  fulfilled  which 
was  spoken  by  the  prophet :  —  "I  will  put  my  hook  in  their 
nose,  and  turn  them  back  by  the  way  which  they  came,  and 
they  shall  not  come  into  this  city  "  (alias  Vermont)  "  saith 
the  Lord." 

It  remains  that  I  congratulate  your  Excellency,  and  par- 
ticipate with  you  in  the  joy  of  your  capturing  the  haughty 
Cornwallis  and  his  army,  and  assure  your  Excellency  that 
there  arc  no  gentlemen  in  America  who  enjoy  the  glorious 
victory  more  than  the  gentlemen  of  this  state,  and  him  who 
has  the  honor  to  subscribe  himself  your  Excellency's  devoted 
and  most  obedient,  humble  servant, 

Thomas  Cjiittendk.v. 

His  Excellency  General  Washing  ton. 


No.  VIII. 


LETTER 


NATHANIEL    CHIPMAN    TO    ALEXANDER    HAMILTON, 


OCCASIONED    BY 


CERTAIN   PROCEEDINGS   OE  THE  DEMOCRATIC    SOCIETY 


COUNTY    OF    CHITTENDEN. 


The  proceedings  of  the  Democratic  Society  of  the  county  of  Chitten- 
den, which  occasioned  the  following  letter,  form  a  document  of  consid- 
erable length,  which  is  not  here  republished,  as  its  contents  would  be  of 
little  interest  to  readers  of  the  present  generation.  They  are  a  strong 
expression  of  the  democratic  doctrines  of  the  time.  As  some  of  the  posi- 
tions laid  down  in  it  were  enforced  by  quotations  from  the  writings  of  Judge 
Chipman,  he  felt  it  his  duty  to  address  the  following  explanatory  letter  to 
Mr.  Hamilton. 


LETTER, 


Rutland,  Vt.  January  9,  1794. 
Dear  Sir,  —  You  have,  undoubtedly,  noticed  the  proceed- 
ings of  the  Democratic  Society  in  the  county  of  Chittenden, 
in  this  state.  I  find  they  have  been  published  with  great 
avidity  in  New  York  and  Philadelphia.  The  founder  of  that 
society,  and  sole  author  of  their  late  proceedings,  perhaps 
you  are  apprized,  is  not  an  inhabitant  of  this  state,  but  re- 
sides, generally  in  the  city  of  New  York.  What  could  have 
induced  that  gentleman  to  call  in  the  aid  of  my  name  or  my 
writings,  hi  support  of  such  proceedings,  is  best  known  to 
himself.  If  you  have  not  read  the  work  from  which  the 
quotations  are  made,  you  might  be  led,  from  the  detached 
sentences  there  cited,  to  believe  that  it  contains  the  princi- 
ples of  anarchy  instead  of  the  principles  of  government  — 
principles  wholly  subversive  of  a  representative  democracy. 
If  you  give  yourself  the  trouble  of  reading  the  passages 
there  cited,  in  their  connection,  you  will  find  that  they  have 
been  brought  in  by  the  head  and  shoulders,  and  with  the 
strength  of  a  Hercules,  as  a  comic  writer  observes  on  a  like 
occasion.     I  have,  indeed,  in  treating  of  a  representative 


396  APPENDIX. 

democracy,  asserted  that  "  an  interest  in  the  approbation  of 
the  people,  and  a  strong  sense  of  accountability  to  them,  in 
all  ollicial  conduct  is  the  greatest,  or  rather  the  only  effect- 
ual security  against  abuses  in  those  who  exercise  the  powers 
of  government." 

I  have  farther  said,  that  "  to  render  the  public  sentiment  a 
more  rational  and  more  powerful  check  upon  every  depart- 
ment, it  is  essentially  necessary  that  there  be  in  the  consti- 
tution of  every  free  state  an  effectual  provision  for  the  dis- 
semination of  useful  knowledge."  That  "  in  a  republic,  by 
which  is  intended  a  representative  democracy,  the  powers  of 
government  are  supported,  not  by  force,  but  by  the  senti- 
ments of  the  people ;  "  that  "it  is  necessary  to  cultivate  a 
sentiment  of  attachment  to  the  government." 

I  still  believe  these  sentiments  to  be  just,  not  in  theory 
only  but  in  practice.  Yet  I  cannot  discover  that  they  ex- 
press, or  even  remotely  imply  an  approbation  of  self-created 
societies  and  clubs,  formed  for  the  purpose  of  censuring  the 
proceedings  of  governments  in  transitu,  of  anticipating  the 
deliberations  of  constitutional  bodies,  or  dictating  the  meas- 
ures which  those  bodies  ought  to  pursue. 

If,  sir,  you  will  have  the  patience  to  read  so  long  a  letter, 
I  will  give  you  my  reasons  for  believing  such  societies  to  be 
not  only  useless,  but  dangerous.  Simple  democracies,  iu 
which  the  people  assemble  in  a  body  to  enact  laws,  and  de- 
(  Lde  upon  public  measures,  have,  from  the  earliest  ages,  ex- 
hibited scenes  of  turbulence,  violence  and  fluctuation,  be- 
yond any  other  kind  of  government.  No  government  has 
been  able  to  e\i>t  under  this  form  for  any  length  of  time. 
Experience  has  evinced  that  the  people,  collected  in  a  body 


APPENDIX.  397 

are  impatient  of  discussion,  and  incapable  of  reasoning,  but 
they  are  highly  susceptible  of  passions.  To  these  the  more 
artful  direct  their  whole  attention  ;  by  these  every  decision  in 
the  numerous  and  heterogeneous  assemblies  of  the  people  at 
large  is  irresistibly  influenced.  In  a  simple  democracy  there 
can  be  no  fixed  constitution,  everything  is  liable  to  be 
changed  by  the  frenzy  of  the  moment,  or  the  influence 
of  a  popular  faction.  In  such  a  government,  when  all  are 
immediate  actors,  no  accountability  can  exist ;  consequently 
in  no  government  have  there  been  instances  of  a  more  fla- 
grant violation  of  rights,  or  a  tyranny  more  cruel  and  reme- 
diless than  those  which  have  been  frequently  exercised  over 
a  minority  of  the  citizens  or  against  an  unpopular  indi- 
vidual. 

Such  is  not  the  government  under  which  we  live.  Our 
national  government  and  the  governments  of  the  several 
states  are  representative  democracies.  This  kind  of  govern- 
ment is  calculated  to  give  a  permanent  security  to  all  the 
essential  rights  of  man,  life,  liberty  and  property,  the  equal 
right  of  acquisition  and  enjoyment  in  a  just  compromise  with 
the  rights  of  all  which  a  simple  democracy  does  not.  It  is 
designed  in  its  constitution  to  provide  equally  against  the 
tyranny  of  the  few  and  the  tyranny  of  the  many. 

The  people  have  endeavored  to  place  their  delegated 
rulers  in  a  constant  state  of  accountability.  This  is  the 
hinge  on  which  American  liberty  turns.  That  the  most 
perfect  freedom  of  deliberation  might  be  secured,  the  mem- 
bers of  the  legislature  arc,  in  their  public  conduct,  made 
accountable  only  to  the  sentiments  of  the  people  by  the 
interest   which  they  have  in  Ihe  approbation  of  their  con- 

50 


398  APPENDIX. 

stitucnts.  The  executive  is  made  accountable  to  the  public 
sentiment,  and  is  further  amenable  to  a  constitutional  tribu- 
nal for  every  violation  of  trust. 

The  powers  and  duties  of  the  several  departments  are,  in 
many  instances,  limited  by  the  laws  of  the  constitution, 
by  which  the  people  have  said,  thus  far  shall  ye  go  and 
no  farther.  Many  things  are  left  to  their  integrity  and  dis- 
cretion to  act  for  the  best  good  of  the  nation. 

Congress  are,  from  their  situation,  furnished  with  the  ne- 
cessary information  relative  to  the  present  state  of  things  as 
they  may  affect  the  nation,  whether  internally  or  externally. 
All  this  is  in  their  debates,  handed  out  and  circulated  among 
the  people,  together  with  all  the  reasons  for  and  against  any 
measure  that  could  be  suggested  by  the  most  mature  delibe- 
ration. By  these  means  the  people  have  in  their  power  suffi- 
cient information  to  judge  calmly  and  rationally  of  the 
measures  which  have  from  time  to  time  been  adopted.  Pro- 
ceeding in  this  way,  I  am  persuaded  that  a  representative 
democracy  may  secure  the  most  civil  and  political  happiness 
of  any  of  the  kinds  of  government  which  have  yet  existed. 
Such  is  the  state  of  things,  that  knowledge  in  the  compli- 
cated affairs  of  civil  society  comes  not  by  intuition.  The 
means  of  information,  and  frequently  diligent  investigations, 
arc  necessary.  The  knowledge  of  the  people  will  follow, 
but  can  rarely  precede  a  public  discussion.  They  will  gene- 
rally approve  or  disapprove  with  judgment,  but,  in  debating, 
arc  exposed  to  all  the  rashness  of  ignorance,  passion  and 
prejudice. 

Our  self-created  societies  and  clubs,  as  it  appears  to  me, 
have  a  tendency,  directly  or  indirectly,  to  introduce  into  the 


APPENDIX.  399 

measures  of  government  all  the  precipitation,  all  the  heat 
and  ungovernable  passions  of  a  simple  democracy. 

Have  we  reason  to  believe  that  these  self-pronounced  dic- 
tators have  a  freer  access  to  the  means  of  information,  that 
they  have  been  able,  more  fully,  to  comprehend  the  present 
circumstances,  the  principles,  and  reasons  which  ought  to 
direct  public  measures,  than  those  to  whom  the  people  have 
confided  that  task,  or  even  than  their  more  peaceable  and 
quiet  fellow-citizens  ?  Certainly  they  have  given  us  no  un- 
equivocal proof  of  either.  Their  professed  design  has  been 
to  promote  political  knowledge,  but  whenever  they  have 
established  themselves,  they  have  assumed  a  dictatorial  style 
in  their  resolves.  When  any  man  or  body  of  men  have 
refused  their  dictates,  or  presumed  to  differ  from  their 
opinion r  no  length  of  meritorious  services,  no  virtue  or  in- 
tegrity of  character,  have  been  proof  against  their  bold  pro- 
scriptions. Like  the  demagogues  of  simple  democracy, 
they  have  appealed  wholly  to  the  passions  and  jealousies  of 
the  people.  They  have  assumed  to  speak  the  sentiments  of 
the  people,  though,  in  point  of  numbers,  they  are  certainly 
a  very  inconsiderable  minority.  If  their  assertions  have  so 
far  imposed  on  the  national  government,  as  to  direct  their 
measures,  it  is  worse  than  the  evils  of  a  simple  democracy. 
It  is  an  engine  to  govern  the  majority  by  a  minor  faction. 
Nothing  of  this  kind  can  happen  in  an  assembly  of  the 
people  at  large.  Is  it,  sir,  supposed  that  the  measures  of 
congress  have,  in  their  present  session,  been  influenced  by 
means  of  these  societies  ?  I  should  be  very  unwilling  to 
believe  that  the  American  government,  which  I  had  sup- 
posed to  be  an  improvement  upon  the  wisdom  of  ages,  had 


400  APPENDIX. 

so  soon  submitted  to  the  control  of  a  few  self-authorized 
oligarchs. 

If,  however,  these  societies  are  unable  to  dictate  meas- 
ures to  the  national  government,  they  will  still  have  a  very 
pernicious  effect.  When  once,  though  under  the  thickest 
clouds  of  ignorance,  they  have  prejudged  a  measure,  and 
assumed  to  dictate  it,  unless  they  have  more  candor  than 
most  men,  their  prejudices  will  rarely  come  to  any  light  of 
conviction.  This,  as  far  as  their  influence  extends,  will, 
in  a  great  degree,  prevent  the  happy  effect  of  the  wisest  and 
best  measures.  It  is,  perhaps,  of  as  much  importance,  in 
general,  that  the  people  should  see  and  acknowledge  the 
measures  ef  government  to  be  wise  and  good,  as  that  they 
should  be  really  wise  and  good.  If  there  is  a  failure  in 
either  respect,  they  will  not  secure  the  happiness  of  the 
people. 

It  is  of  great  consequence  that  the  people,  with  the  means 
of  information,  should  cultivate  a  disposition  to  judge  with 
coolness  and  impartiality,  and  that  legislators  should  en- 
deavor to  render  the  reason  of  their  measures  plain  and 
intelligible  to  the  common  sense  of  mankind. 

I  know  it  is  frequently  said  that,  in  a  republic,  it  is  neces- 
sary to  the  maintenance  of  liberty,  that  the  people  should  be 
jealous  of  their  rulers.  But  I  have  never  been  able  to  per- 
suade myself,  that,  to  be  a  good  republican,  a  man  must 
imbibe  prejudices  which  is  the  necessary  consequence  of 
jealousy.  That,  certainly,  is  an  unfortunate  situation,  which 
renders  candor  dangerous,  or  jealousy  a  species  of  virtue. 
In  no  government  are  rulers  held  more  strictly  and  generally 
accountable,  than  in  one  representative  democracy.     Their 


APPENDIX.  401 

continuance  in  place  depends  constantly  on  a  faithful  dis- 
charge of  their  trust. 

Ought  we  not,  then,  for  a  suspicious  jealousy  to  substitute 
a  manly  and  rational  confidence  ?  This,  by  no  means,  im- 
plies a  supine  inattention  to  public  men  or  measures,  but  it 
admits  candor  in  the  examination.  If  jealousy  be  a  repub- 
lican virtue,  if  it  be  necessary  to  excite  suspicions  among  the 
people,  to  render  them  watchful  of  their  liberties,  it  must  be 
acknowledged  that  the  democratic  societies  have,  in  this 
respect,  great  merit.  They  will  not,  surely,  think  that  the 
people  ought  to  exempt  them  from  suspicions  and  jealousies 
because  they  are  self-existent.  Until  their  time  shall  come, 
they  may,  on  these  principles,  justify  any  of  the  most  violent 
and  ill-grounded  invectives  against  the  members  of  the 
federal  government,  as  purely  intended  to  keep  alive  among 
the  people  a  necessary  jealousy,  a  wholesome  distrust  of 
rulers.  If,  by  these  means,  the  people  should  be  deprived 
of  all  the  present  blessings  of  government,  and  the  nation 
plunged  into  a  long  series  of  calamities,  they  have  only  to 
say,  all  this  is  the  glorious  price  of  liberty.  They  need  not 
blush  for  their  virulent  censures  of  the  executive  of  the 
federal  government,  for  an  opposition  to  the  measures  of  a 
foreign  minister  —  those  measures  which  were  disapproved 
by  his  nation,  and  for  which  he  was  recalled  with  pointed 
marks  of  disgrace.  Notwithstanding  what  has  been  ob- 
served, I  do  not  mean  to  insinuate  that  such  associations  as 
our  democratic  societies  are  to  be  animadverted  upon  by 
laws,  or  restrained  by  the  constitution  :  the  exercise  of  such 
a  power  would  be  more  dangerous  to  liberty  than  the  asso- 
ciations themselves.     They  must  be  left  to  rise  or  fall  solely 


402  APPENDIX. 

by  the  good  sense  of  the  people.  Nor  would  I  insinuate 
that  it  can  never  be  expedient  for  the  people  to  assemble  to 
petition  for  a  redress  of  grievances,  whether  constitutional 
or  legislative.  But  it  Avould  be  well  if  the  petitions  and  rep- 
resentations of  the  people,  unless  when  they  come  from 
known  corporate  bodies,  were  always  to  be  signed  individ- 
ually, that  it  might  be  known  how  far  they  are  expressive  of 
the  public  sentiment.  When  they  come  forward  from  vol- 
untary societies,  there  is  often  a  deception.  It  is  not  known 
whether  they  embrace  ten  or  ten  thousand  individuals. 

From  these  observations  you  will  be  convinced  that  I  am 
no  friend  to  such  societies,  and  that  my  name  ought  not  to 
have  been  brought  forward,  as  one  who  favored  their  prin- 
ciples, 

I  am,  Sir,  yours,  &c, 

N.  Chipman. 

Alexander  Hamilton,  Esq. 


THE     END. 


ECE    This  book  i*  1)1  L 

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